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SLAVERY,

INVOLUNTARY SERVITUDE:

DOES IT LEGALLY EXIST

*
"

STATE OF NEW YORK?

POINTS ON ARGUMENT IN COUBT OP APPEALS.

OPINIONS IN COURT OF APPEALS.

ALBANY :

J. MUNSELL, 78 STATE STREET.

1864.

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SLAVERY, OR INVOLUNTARY SERVITUDE.

To Martiuus Lansing, William Heidorn, William Witbeck, David
Reczor, John N. Smith, Albert Slingerland, John Ried, Nicholas
Hoi:k, Lawrence Fenner, Peter Ball, Denison Fish, Thomas B.
Peine, Jacob White, Louis AHendorph, John D. Wood, DeWitt
C. Thomas, William Carmichael, and others.
Gentlenlkn ;

Having been employed by you to resist demands of rent made by
parties who have falsely assumed to be your landlords, we take this
mode of Addressing you upon that subject. We trust we have an excuse,
if an excuse be necessary, in the importance of the questions involvedt
and the fact that so great a number are directly interested, and re-
side so remote from each other, that it would be exceedingly incon-
venient, if not impracticable, to communicate personally, or address
you individually.

The immediate occasion for allowing you opportunity of informa-
tion , arises from the latest decisions of the Courts. Copies of the opin-
ions are annexed. But to read them understanding^, you should take
a brief retrospect of the past. To aid you in that respect, we will di-
rect your attention to some of the more prominent aspects which the
subject has been made to assume, and the remarkable mutations which
have attended its progress.

The practical question forced upon you, was, whether you were per-
sons held ft service according to the laws of this State, and liable to for-
feiture of your property for refusing to serve.

So far the question is personal to yourselves, and comparatively
unimportant to the public. But as there are no facts or circumstan-
ces pressing upon you, except such as are common to great numbers
of men, aud capable of extension so as to embrace every owner of land
in the state, there are great public questions involved, namely; wheth-
er we have, in this State, an institution of servitude ; and, if so,
whether it is a relic of the past soon to wear out, or a thing just be-
gining life and vigor, fitted to grow and expand to an indefinite ex-
tent ; whether it came from the feudal contrivances used for the op-
pression of labor in the Old World or is one of our own : and, if
the latter, by what malign influences it was generated and nourish-
ed, and is now sustained in the midst of our free institutions.

The first inquiry is, whether wo have an institution of servitude
now existing in the State. This must be answered in the affirmative,
if the opinions referred to contain the law of the State, or are to be
adopted a-j the law of the State. If such be the law. we not only have
siuli an institution, but it is a thin^ capable of extension and expansion
without limit. The service, in these cases, was a single day in the
year, but the principle would just as well sustain a claim for every
day in the year : The money or things in kind provided for, are
comparatively small in amount. But, by the same rule, if the own-
er of lands should covenant to serve three hundred and sixty-five
days in the year, or should covenant to pay as a tribute, all he could
raise, or by any means acquire, and should covenant for his heirs and
assgins, every succeeding owner of the same lands, would be liable to
perform the covenant. The covenantor might except himself from
the obligations of his covenants, by fixing the time they were to be-
gin. It is easy to perceive, that by adopting a rule which allows one
man to bind another, and one generation of men to bind all other
generations, you have an institution of servitude likely to take to
itself giant proportions.

The second inquiry relates to the assumed origin of the institution.

The facts relied upon, stated in a general manner, are as follows ;
Some seventy years ago, certain contracts were made by men, of
course, long since dead, and with whom the defendants had neither re-
lation nor connection. Those contracts were, in form and elTect,
conveyances in fee from the one party, with an agreement by the oth-
er, to perform a day's service, and deliver an annual tribute of wheat
and hens as the price or consideration of the conveyance. The lan-
guage of the covenants embraced the heirs and assigns. The defend-
ants, fifty years or more after, became owners of the same lands.

Those are the facts upon which you arc held to service, and upon
which the Courts assume to establish an institution of servitude.

The subject, in its servile phase, is of modern date, in this State.
The parties who made the contracts, fulfiled them as they did other
personal undertakings. Whether they attached to the lands as obliga-
tions on their successors in ownership, was a question which could
not, and did not arise while they were owners, and was consequent-
ly postponed until a later period. It is not much, if any, over a quar-
ter of a century, since the servile aspect of these contracts began to
be pressed upon the attention of the people. It naturally produced
excitement and resentment amongst those upon whom it was claimed
to fall. They had been educated as freemen in a State which boasted
of its free institutions. To submit peaceably, or even passively, to
such servile exactions, appeared to them self-degradation.

Great effort was made, by interested parties, to create in the public
mind the impression that the repugnance manifested was the result of
bad faith and a general disposition to repudiate honest debts, and de-
fraud honest creditors. A more unfounded slander was never at-
tempted. The frauds and bankruptcies which have sometimes
reduced competence to want, and made paupers of the widows and
the fatherless, have not sprung from that source.

There were extraneous considerations which deepened the resent-

merit of the people. Such obligations could not have been imposed
in England. There was a statute existing there as early as 1290,
which made them impossible. It was claimed that the people of this
State, in their general adoption of English laws, had omitted that
statute ; and the omission was credited to the influence of the large
landholders.

While the.system was denounced by men prominent in authority, by
governors and by the legislature, as inconsistent with the genius of
our government and prejudicial to the public welfare, active measures
were put in operation to rid the state of the admitted evil. But be-
fore they were brought to a final result, the subject came before the
Court of Appeals, and that court unanimously decided that the Eng-
lish statute of 1290 making the creation of feudal servitude an im-
possibility, had been embodied in our act concerning tenures passed
in 1787; that it "put an end to all feudal tenure between one citizen
and another, and substituted in its place a tenure betweeu each land-
holder and the people in their sovereign capacity ;*' and " placed the
law of this state, in respect to the question in controversy, on the
same footing on which the law of England now stands and has stood
since the reign of Edward the First.'' (2 Selden, 504-5).

Thus in about a dozen years after the contest began, it was finally
decided that feudal tenures, and of course, feudal servitude, did not
and could not exist in the state, by conveyances in fee made since
July 4, 1776. / On a subsequent occasion, the same court reiterated
the same decision, and extended it so as to embrace the colonial pe-
riod alike with the state. (19 N. Y. 76).

The decision of that point put an end to all such claims, so far as
the laws of the state were concerned. This was conceded by coun-
sel of the claimants. They never have, personally or by counsel,
contended that they could enforce their demands against third parties
upon any other theory than that of feudal tenures. That theory was
pronounced by the court untenable; and it follows, that if we have
an institution of servitude, by which defendants in such cases can be
held legally liable, it has sprung from other than a feudal source.

The next epoch of the subject began in 1858. The claimants hav-
ing sold and :issigned in fee, had no lands and no estate in lands.
The law was so clearly settled against them, that no lawyer off the
bench could design a theory which he dare put forth as ;in advocate
in their favor. They were more fortunate in finding an advocate on
the bench. By that means, the Supreme Court of the third judicial
district, wag induced to direct its energies to uphold the system from
the crushing effects of the decision of 1852. They could find nothing
in the common law to help ; nothing in the laws of any state or na-
tion, except our own. So they proclaimed. (See 27 Barb., 164),

Chapter 98 of the laws of 1805 — passed years after the contracts
sued upon were made — was the particular act selected.

The selection and application of that act, were extraordinary ; but
the manner of making it work out the result, was more extraordi-
nary than the application itself. We giee that part of their labors
in their own language: " Applying an act, enabling grantees of re-
versions to hold certain rights and enforce certain remedies, by reason
of being assignees of reversions, it, of necessity, makes the lessor's

interest in such a lease, — as well in his own hands, as in those of
his assignees, pro hac vice equivalent to a reversion.'' And "being
subsequent (as was the act it amended | to the law concerning tenures,
it is, it, and so tar as, repugnant to that law, a repealing act, even
without the express trords, ' any law,' &c." (27 Barb. 152).

The plain meaning of this is, that the contracts sued upon were,
when made, assignments, by force of the express provisions of the
statute concerning tenures; that subsequently, and by the retroaction
of the statute of 1803, the assignments were changed to leases.

Had the statute clearly expressed such an intention, no one will
deny, but that it would have been a flagrant attempt, on the part of
the legislature, to exercise an extraordinary power; no less than
making contracts to differ in meaning and effect from what the parties
had made them. Of course, if the legislature could change an assign-
ment into a lease, they could change <i lease into an assignment. If
they could create the relations of landlord and tenant where those
relations did not exist, they could dissolve those relations where they
did exist.

But the statute of 1805 expressed no such intention. No such
meaning can be deduced from the language. It merely gave certain
rights of action to the gran'ces of reversions of leases in fee. The
language is too explicit for cavil. It did not include assignments,
nor reach other parties than grantees of reversions. Thus by the
Tery terms of the statute, it could not apply to the plaintiff, nor to
the contracts sued upon.

It was not the statute which did the work. An act of the legisla-
ture which should declare all assignments leases, or ad leases assign-
ments, with a view to create obligations where none existed, or dis-
charge them where they did exist, would be so obvious an outrage
that no court would dare to give to it effect. The sta'ute was used
only as a mask. The mode of construction demonstrates this. " Law
is the perfection of reason. *' -sl\s the judge : (27 Barb., 143) and he
proceeds to demonstrate his maxim upon the materials before him.
The first thing was to assume that the legislature intended to apply
the statute to assignments, and to parties other than grantees ol re-
versions; and. consequently, that the court were not at liberty t ) re-
fuse so to apply it. But the language of the statute, by reason of its
inaptitude, would not apply. They make that the fortunate feature
for their purpose. They could not change the language of the act,
and must therefore change the thing to which they were forced to
apply it. In other words, as the legislature had not fitted the statute
to the thing, the court must fit the thing to the statute. Hence, " of
necessity," as they reason, they are forced to " make" an assignment
into a lease, and a thing which is not a reversion and bears no resem-
blance to a reversion, into a pro hac vice equivalent to a reversion.

This mode of construing statutes by the rule of contraries, and
upon the maxim thai " law is the perfection of reason.'' will be more
readily understood by the common mind, on applying it to familiar
objects. For example: We have statutes which, according to their
express language, apply only to dogs. Suppose some one could profit
bv applying the same statutes to horses, instead of dogs. He has
only to convince the judges thai the legislature, in using the word

dogs, really meant horses. It would be a task of no greater apparent
difficulty then to convince them that in using the word lease, the
legislature meant assignment. The conviction once produced, no mat-
ter how, or by what means, all the rest would come easy. The judges
would find no difficulty in adapting their formula of logic to meet tho
case. They have only to say, "applying a statute to. a horse, which,
by its language applies only to a dog, of necessity makes the horse a
dog, or — which is the same thing — pro hoc vice, equivalent to a
dog.'' And who doubts that the horse would become just as good a
dog as the assignment would a lease?

This theory of making law by a forced process of reasoning, passed
in review before the Court of Appeals in 1859, and received the sanc-
tion of that court in an elaborate opinion, which has been reported
(19 N. Y., 68). That court, in commenting on the statute of 1805,
declared that it placed " the assignees of both parties upon grants in
fee, upon the same footing which was occupied by the assignees of the
parties to a lease for life or years " (19 N. Y., 92).

There was only one point in the argument of the court below,
which they sought to strengthen. It might be contended that leases
in fee did exist here before the institution of the state government.
The Court of Appeals so held in 1852 (2 Selden, 503). That being
so, the court seemed to have feared that the statute of 1805 might
have a legitimate application, and thus weaken that law of "necessi-
ty," by which they sought to force it into an illegitimate connection.
" It was in part to furnish an answer to that suggestion,'' says the
learned judge, "that I have taken the pains to show that there was
never a period in this state when conveyances in fee between individ-
uals created a tenure " (19 N. Y., 84).

With that point thus fortified, the learned author of that opinion
expressed his unqualified conviction that the intent of the legislature
to embrace assignments was "plain and certain;'' and, that effect
must be given to that intent, though the language was " incongruous."
(19 N. Y., 84).

The intended force of that point is evident. There being no leases
in fee in the state, to which the statute could apply, in obedience to
its language, it must be applied to assignments in disobedience to its
language; and that application, " of necessity,'1 changed all assign-
ments to leases.

The cogency of this point also will be more impressive by apylying
it to the supposed case before put. Thus, could it be shown with
equal certainty that there was not a dog in the state, and never had
been, and never could be, then the statutes in regard to dogs would
just as clearly have been intended for horses, and the court just as
stringently coerced to so apply it. Hence it would need no argument,
according to the judicial dialectics, to show that the whole equine
race would be changed to canine, and therefore subject to all the
muzzle-wearing, sheep-killing penalties of the statute.

That was all there was of the triumph of "the feudal lords'' by
the decisions of 1858 and 1859. They had not acquired proprietor-
ship in the lands; they had only what their friends on the bench call-
ed a " pro hac vice equivalent." In the language of the court, they
were by those decisions, based expressly upon the statute of 1805,

placed on the same footing of the owners of lands who had tenants
under them for life or years. It was an easy matter to say so, but
quite another to realize it. There were two parties to that arrange-
ment. The courts had seen but one. They could not give to one
party without taking from the other. The court overlooked that fea-
ture of the case. The losing parties did not.

Moreover, those decisions were not placed before the public in a
way to command a great degree of respect There were weak points
in the argument, so obvious that they could not escape observation.

In the tirst place there was a decisive admission that the plaintiffs
were not what they pretended to be, that is, they were not the rever-
sioners of the lands with tenants under them. Had they been so, the
task of the court was an easy one, for then no defence was pretended.
By trying to get up an equivalent for the reversion, they admitted
that the plaintiffs had not the reversion, and thereby admitted, as a
que-tion of law ,the other point of the defence, that the plaintiffs not
having the reversion, could not recover; for if that was not true, there
was no necessity for contriving something equivalent to a reversion
to supply the want.

In the second place, the manner of making the " equivalent ■' was
not one calculated to command the respect of an intelligent people.
It was the hrst time that a court had ever assumed that a statute
meant just the opposite of what its language expressed. And then
the mode of what they call " the perfection of reason,'' by which
they assumed " of necessity " to change one thing to another, has had
no parallel.

At the next session of the legislature an act was passed declaring
" that the act of 1805 and its subsequent ret-nactments shall not apply
to deeds of conveyance in fee made before the passage of that act, nor
to such deeds hereafter to be* made " (Laws of 1860, p. G75).

The Legislature uundoubtedly acted under the belief, that if the
Courts were relieved from applying the act of 1805. they would be re-
lieved from the necessity of making an assignment into a lease, and of
placing those who owned no lands on the " same footing'' with those
who did own.

The Supreme Court of the third district refused to be relieved, and
reiterated the argument of the 27, Barb, before cited, about making
" Legislative reversions, '" and " Statute reversions" in order to enforce
the claims of the plaintiffs. They assumed that there was no liabili-
ty of the defendents, except as it was created by the Act of 1805;
and that the repeal of that act would destroy the liability, by destroy-
ing the " Legislative reversion,'' which that act created. Hence they
would not believe that the legislature meant what they expressly de-
clared ; and, moreover, they denied that the Legislature had the con-
stitutional right to pass an act of such meaning. According to their
logic the Legislature could create a liability, but could not remove it.
But there was nothing new in the argument, and nothing which has
since commanded any attention from the parties or their counsel, or
the Court above. We need, therefore, bestow no more space upon
that decision. The leading opinion will be found reported in 33
Barb. 136.

Next in order, come the opinions hereto annexed. We do not in-

9

tend, in this communication, to review them at length. We annex
the points on both sides, as made on the argument, which will ena-
ble you to understand the questions which were really presented; and
by reading the opinions, you can judge for yourselves what questions
the Court have omitted to notice, what they have passed upon, and
how they have done it. There are only a few peculiarities character-
ising the opinions to which we shall now direct your attention.

You will perceive that the opinions and theory of the Supreme
Court command no respect from the Court of Appeals — not so much
as a notice. The Court of Appeals sweeps away the foundation of
that theory, by deciding that the Act of 1805 was repealed by the
Act of 1860; and they furnish no substitute or equivalent in the place
of it. On the contrary, by formally declaring it to be a settled propo-
sition, that the contracts sued upon were not leases, but assignments,
and could not operate as leases, that they left in the grantor neither
any reversion nor a possibility of reverter, they stripped the plain-
tiffs as naked as they were born, of all right to rents and services as
against the defendants. Had the Court taken the trouble to examine
the points and authorities, they would have given judgment for the
defendents. They could only have failed to perceive the nude condi-
tion of the plaintiffs by shutting their eyes, or failing to look. The
plaintiffs are not so inattentive to the nakedness in which they were
left. They repudiate, as you will know, the positions of the Court
and persist in calling the contracts leases, and keeping up their pre-
tensions about ownership of the "soil." The reason which gov-
erns them is obvious. Placed before the public in the plight where
the Court have left them, they foresee their inevitable failure to sus-
tain the system of servitude by which they seek to profit. They un-
derstand, what the judges seem not to have been conscious of, that
there is always, in the rear of all courts, a public opinion, upon which
their decisions must rest. For example, should the Court hold one
man liable to pay another's debts, because the two parties were resi-
dents of the same town, or the same house, the judgment would be
so obviously contrary to law, that it could not be enforced. Such a
court would be driven from office by general consent.

The rent-claimants evidently regard the last decision of the Court
of Appeals as of that character; and consequently they ignore the
doctrine therein proclaimed. The practical question forced upon you,
is whether you will regard it with more respect than they do.

To determine that question, you must place yourselves upon the
stand-point fixed by the Court, and see whether, starting from that
point, the laws of the State have fixed your position in society as
persons held to service. If they have, you are liable. If they have
not, you are not liable.

The first thing is to see what light, if any, the Court has thrown
upon the subject. In the first place, they resolved that you were per-
sons held to service. But they had previously determined that you
were tenants in fee, holding by a tenure immediately of the State;
and that the plaintiffs were only the assignees of certain covenants
made seventy years ago, by persons, now dead, on the ocoasion of
their purchasing and taking an assignment of estates in fee. In other

10

words, they were assignees of the purchase money covenants from
vendees to vendors on the sale and conveyance of lauds in fee. The
question of law was, therefore, whether purchase money covenants
trom a vendee to his vendor on purchase of lands in fee made in 1790
attached as a servitude to the estate purchased. No one dare claim
the affirmative of that proposition. Even when such a covenant is
secured by mortgage on the lands purchased, a subsequent purchaser
incurs no personal liability to pay it. (See authority on p. 26).

The court in the opinions annexed admit the negative of that pro-
position: and they meet the point, by saying that it is not true, as
claimed by defendants' counsel, that the covenants were purchase
money covenants. (See p. 56). If they are wrong in that denial,
they are of course wrong in holding you bound to service by the con-
tracts of men dead before you were born. Let us test the truth or
falsehood of the denial by their own decision. They have decided
that the covenantors purchased the land, and that the covenants
were the consideration price of such purchase. If they are not pur-
chase money covenants, what are they? Their phraseology is pecu-
liar. They do not say that the covenants are rent covenants; they
only say that they are us clearly rent as they would have been if the
covenantor had covenanted for other lands previously owned by him
to secure the same purchase money. They might, with as much pro-
priety have said, they were as clearly rent as though made in con-
sideration of the purchase of a yoke of oxen. With as much truth,
they might have declared any other debt incurred by the covenantors
to be a debt for rent, and that you were, therefore, liable to pay it.
The lawyer who mistakes such a thing for rent, should consult the
dictionaries, and failing to learn better there, he should go to bi3
law books. We would commend his attention particularly to Hope v.
Booth, 20 Eng. Com. Law Rep., 574, and Parmenter v. Webber, 8
Taunton, 593; or if he discards English reports, look at Sackett v.
Barnum. 22 Wen.. 605. He will find that, even where parties have
agreed on the purchase of lands, " that the relation of landlord and
tenant shall and does henceforth exist between the parties to all in-
tents and purposes, and that the parties of the first part may collect
and recover all moneys becoming or to become due on the contract by
distress or otherwise, as for so much rent due," it has been decided that
the payments are not rent. Upon such an agreement the court,
Bronson J., (22 Wen., 607). said that, " the -everal payments wh ch
the vendee was to make were not a rent or return for the temporary
enjoyment of the land; they were not reserved out of the annual
profits by way of recompense or retribution for the possession of the
property, but they were a part of the consideration lor the sale — the
price of the land itself — with the addition of interest, because the
payments were postponed to future periods. On default of payment,
the parties have stipulated for a remedy by distress, as for so much
rent due. Whatever may be the legal effect of this agreement, as be-
tween the parties to it, I think they could not, as against third per-
sons, turn the price of the land itself into rent." Those were stronger
cases in that direction than the ones before the court. They were
passing upon contracts, which did not assume to create any relations
of landlord and tenant. No such words were inserted therein. Again,

11

the people are informed that " If the relation of landlord and tenant
between the parties were necessary, it would not be difficult to show
that that relation exists in this case.''

Let us examine that point. The court have decided that the con-
tract is an assignment and not a lease. Now will any member of that
court show how they can make the relation of landlord and tenant
result from a contract of assignment? There are quite a number of
decisions of our courts in the way of such a result. We have already
cited one, Sackett v. Barnum. And if there can be any rule so well
settled by the authorities as to be beyond question, this is one, namely,
that the relations of landlord and tenant can not be created except by
a lease. All the elementary writers agree upon this point. There
are no exceptions. We will cite a few of them:

1 Piatt on Leases, p. 19; Taylor's Lan. k Ten., §16, 42f>, 431 ;
2 Prest. on Conveyancing, 124; 2 Piatt on Leases, p. p. 9, 102.

It has been repeatedly decided by our courts, that the relation of
landlord and tenant can be created only by a lease. Sims v. Humph-
rey, 4 Denio, 1^5, 187, 188 ; Everston v. Sutton, 5 Wen., 281, 2&4 ;
Roach v. Cosine, 9 Wen. 227, 232 ; Williams v. Bigelow, 11 How. Pr.
Rep., 83. 88; Benjamin v. Benjamin. 1 Selden Rep., 383.

Those are some of the difficulties in the shape of authority which
the court will encounter when they attempt to show the relation of
landlord and tenant between the parties to this controversy,

In another part of their argument, the court say, the covenant is
" not a covenant in gross or a mere chose in action," but a covenant
real, and, therefore, you are bound as persons being held to service,
To prove that, they gravely cite Stevenson v. Lumbard. 2 East., 576.
That was an action upon a lease for 31 years, to recover rents accord-
ing to the covenants of the lessee, by the party owning the reversion.
There was no doubt of the covenant being real, because the covenan-
tee had the reversion, and the covenant belonged to him while he
owned the reversion, and no longer. But in the case before the court,
the covenantee had no estate in the lands to which the covenant could
attach. How, then, could the covenant be real as distinguished from
personal?

But this was not a new question- In 1852, the same Court of Ap-
peals declared a similar covenant in just such an instrument to be
•' a mere right or chose in action."' (2 Selden, 506). They repeated
the same thing in 1859 (19 N, Y.. 91). The elementary writers are
uniformly the same way. Williams on Real Property, pp. 265, 273;
Watkins on Conveyancing, 173, 4; Gilbert on Rents, pp. 15, 18; and
other elementary works.

The court admit that the defendants are not liable unless they are
in privity of estate with the plaintiff. And to prove that they are in
privity, they say : "It is settled both in this state and in England,
thai an assignment creates such a privity of estate between the as-
signee and the lessee." And they cite three cases, namely : Ards v.
Watkins, Cro.&Elis. 63; Allen v. Bryan, 5 B. & C, 512. and Steven-
son v. Lombard, 2 E^st, 576. The first cited case was upon a lease
for 30 years ; the second on a lease for l4 years ; and the last is the
case we have already noticed, upon a lease for 31 years. Are not
these citations astounding ?

12

Again: The court says that it was contended by the defendant that
tenure was necessary to make a covenant run with the land as a bur-
den; and by way of refutation, they deny the truth of the proposi-
tion, and cite certain cases in regard to easements. By referring to
the points on the part of the defendants (page 20), you will per-
ceive that the court were utterly at fault in regard to the fact. The de-
fendant did not contend that tenure was necessary, and he cited the
"very cases, as to easements, which the court cite. But the cases, as
to easements, would not help the plaintiff, because the contracts in
question were just as far from creating easements as they were from
creating tenure.

Those are fair specimens of the whole judicial argument. It is diffi-
cult to understand the confusion of ideas, which cites from cases
where the relations of landlord and tenant confessedly exist, to sus-
tain actions where such relations are decided not to exist. It is like
declaring a man to be free, and then attempting to show that he is a
person held to service, by citing cases where slaves have been so held.
So much for their common law argument.

But there was one point on the part of the defence, and it was the
one most pressed upon the court, which they have not attempted to
meet; and that was the statute in force when the contracts were
made, which provided that every purchaser of an estate in fee should
hold the lands so purchased "of the same fee, by the same services
and customs by which the person or persons making such sale or
alienation, before held the same lands or tenements." (See the points,
page 42.)

Here was an express statute, providing that no one should be held
to service by reason of becoming a purchaser of lauds in fee. It was
a copy of an act which has been in force in England for more than
five centuries. It was enacted for the very purpose of preventing the
imposition of rents and services upon estates in fee when such estates
were transfered from one person to another. That it accomplished
that purpose fully and effectually, has never been denied. Even Mr.
Sugden has not expressed an opinion that it " ought " to be otherwise.
That statute was a part of these contracts, and must be read as a
part. Neither legislatures nor courts have the power to change it.
Why then have the court passed that point in silence? Why have
they disregarded its effects? Those are questions which you have a
right to put, and which you should repeat until they are satisfactorily
answered.

The opinion in the ejectment case, first admits all the points of the
defendant, which you will find at p. 26, et seq. But to sustain the judg-
ment, the court rely solely upon a case which was decided in England
200 years ago. (.Jemot v. Cooly). The facts of that case were
as follows : On the 20th of July, 1651, one Drake was the owner in
fee of certain lands and borrowed 6,000/. of one Bovey, and to se-
cure it, granted a rent-charge of 420/. a year. The grant contained
this agreement : "And the said Drake doth covenant and grant to
the said Sir Ralph Bovey, that if the rent be arrear above twenty
days after any day of payment, that then the said Sir Ralph Bovey and
his heirs and assigns may enter into the lands and receive the profits,
until he shall be satisfied of the arrears. •'

13

The court in that case held that M Here the thing granted is only
a power and not the term itself, and it is as a distress; but this power
produces a real effect, when the grantee hath entered he hath only a
pernancy of the profits ; for he cannot cut trees, or pull down houses,
and if he doth, trespass lies against him, as against him who abuses
a distress.''

The court have furnished a severe commentary upon this decision,
in their opinion in the Reid case. Referring therein to the Ball case,
they say that case cannot b? sustained without showing the existence
of the relations of landlord and tenant. Now they not only show
that no such relation exists, but rely solely upon a case where there
was no pretence of such a relation. Moreover in the case before them,
there was no such contract as existed in Jemot agt. Cooly.

By reading the points of the defendant in connection with the
opinion you will be able to understand that the decision of the court
violates "not only the plain provisions of our statutes, but disregards
all the material rules as to ejectment which have been heretofore
adopted by the courts. Taking the case of Jemot agt. Cooly as the
standard relied upon, and the plaintiff would have no right to put any
one off the premises. He could only enter and cultivate and take
his wheat and fat fowls, and then he must retire from the possession,
or he wonld be a trespasser. The introduction of such an action to
our practice is novel to our laws, and will necessarily give rise to many
new questions. Heretofore, in order to sustain ejectment, the plaint-
iff must first have proved title in himself to the premises claimed, and
second, wrongful possession in the defendant. Under the present
ruling of the court the plaintiff must first prove title in the
defendant to the premises claimed, and second that the defendant
is rightfully in possession; and then a contract by some previous
owner creating a personal obligation, and to secure its fulfillment, a
further agreement that the covenantee, in case of failure, may enter
and have the premises as his own by way of forfeiture.

It has been accepted doctrine, that property can no more be made
the subject of forfeiture, than liberty or life. Some of you may re-
member the decision of the same court regarding the sale of intoxi-
cating liquors, and declaring a statute unconstitutional and void, be-
cause it imposed forfeiture as a penalty, Have individuals greater
power to regulate the incidents of property than the legislature?
Where do the court get power to take from one man who owns, and
give to another who does not own? Have they authority to take a
man's property more than his life? And how much respect would be
paid to the judgment of the court, which should authorise a plaintiff
to take the defendant's life?

These are practical questions, which are forced upon you; and they
involve your freedom or your servitude. The manner in which you
shall meet them will determine your lot, whether you are to be classed
as freemen or marked as slaves.

In conclusion, let us sum up the progress of this contest. Rents
and services were demanded of you by the Van ReUsselaers, on the
ground that they were your landlords and you their tenants. They
assumed to base those relations upon certain conveyances in fee,
which they claimed were leases in perpetuity. The reversion, which

14

would have remained had they been leases, they claimed to have de-
rived by will from the grantor, and that, thus, they were the owners
of "the soil." and your landlords.

We advised you that the conveyances were not leases, but assign-
ments. You resisted their demands on that ground alone. If you
were right in that position, it was conceded that you were not liable.
If you were wroiu. you did not deny your liability. That was sub-
stantially the whole issue as il was submitted to the court by the
parties and their counsel. In 1SJ9, as before shown, the courts de-
cided against you, solely upon the ground that the statute of 1805 had
changed the deeds of assignment to deeds of lease. That statute was
then repealed, ami the court, thus relieved, have decided the only
question of law. in dispute between the parties and their counsel, in
your favor, without ambiguity or qualification. Thar* wis therefore
no gr* unci left upon which the court could leg II i; ajjirm the judgment. It
is not only unsustained by law, but in conflict with the express provi-
sions of the statutes of the state.

You will naturally ask whether you have any remedy against such
action of the judiciary.

If you were the tenants of a responsible individual, and thus dis-
turbed in your rights, you would have a 'direct remedy against your
landlord. But you are the tenants of the state, as all other landown-
ers are, and have no landlord to fall back upon except the state. You
can not sue the state. But it does not follow that you have no
remedy. Judges are only the official agents of the state. They have
no power to substitute as law their whims or sympathies for the suc-
cess of any particular class of claimants, nor to change the funda-
mental rules of law.

If it occasionally happens that such is the case, it is generally cor-
rected by subsequent decisions. Wrong can have no permanent suc-
cess. Truth is sure of triumph in the end. In your case, it is not
possible for the court to give such a judgment honestly, and persist
in it after their attention is directed to its injustice and absurdity.
There is. therefore, reason to hope that the same c urt will correct
their errors, on a further presentation of the questions.

But, however that may be. the legislative department of the gov-
ernment, which has the power to make the laws, has also the power
to see that they are properly administered. It is the only way in
which the state can be called on as I 'iidlord, to protect you in your
possessions, against the aggressions of strangers to you, when such
aggressions receive the countenance of the courts.

You applied to the legislature in I860 for relief, and the statute of
1805. upon which the courts charged your liability, was promptly
repealed.

Now. that your liability is charged upon different ground, while it
is decided, without equivocation, that the statute of 1787 is, and ever
since that time has been, in full force, whereby it was made impossi-
ble to impose the burdens and services in question, you have no rea-
son to apprehend, that the legislature will not come, with equal
promptness, to your relief.

COLV1N & BINGHAM.

Albany. December, 1863.

15

In the Court of Appeals.

Stephen Van Rensselaer, Respondent, a»t. Henry Bonesteel, Appel-
lant.

Points for Appellant ; Statement of the Case.

This was an action for the breach of certain covenants made by
one Lodewick Bonesteel in 1794. Judgment for plaintiff on demur-
rer to the complaint, Oct., 1855. Affirmed at General Term 1858
(fol. 53). The ground of demurrer that the complaint did not state
facts sufficient to constitute a cause of action. The facts alleged are
that Stephen Van Rensselaer, now deceased, sold and conveyed cer-
tain lands to the said Lodewick Bonesteel in 1794. and the said Lode-
wick Bonesteel covenanted to pay ten bushels of wheat yearly: and
the defendant had become owner of the same estate before 1848, and
remained the owner in a part of the said premises; and plaintiff had
become the owner of the covenants.

The plaintiff claimed that the defendant was liable for a part of the
ten bushels of wheat for every year he was the owner of part of the
lands (fols. 6 to 25).

The question was whether the defendant was liable. This court
in a similar case sustained tne judgment on the ground that the stat-
ute of 1805, in regard to grantees of reversions, retroacted upon
the contract and made the defendant liable. The question now to
be presented is, whether that act construed to create the liability, was
within tne constitutional limits of the legislature.

Points.

I. The liability of the defendant must rest upon principles entirely
aside from any which relate to the liability of the covenantor upon
his own covenant. The latter would be liable by reason of his priv-
ity of contract. The former was not in privity of contract and could
not be made liable unless he was in privity of estate. But it being
decided that the instrument containing the covenant did not create a
new estate, but only assigned a preexisting one, there was no privity
of estate in connection with the covenants, when the contract was
made. The covenanting parties were in no relation to each other,
except that of vendor and vendee, and confessedly the covenants of
the latter could not fall as a personal burden upon subsequent pur-
chasers (27 Barb., 173). Then came chapter 98 of the laws of 1805,
which has been held to create the liability. The theory is, that the
retroaction of the statute upon the annual payment made it " equiva-
lent to a reversion'- (27 Barb., 15')); "made it for all purposes of
transfer and the rights to enforcement by law, a reversion " (33 Barb.,
137). That " being subsequent to the law concerning tenure, it was,
so tar as repugnant to that law, a repealing act (27 Barb., 152), and
placed " the assignees of both parties upon grants in fee, where a rent
was reserved, upon the same footing which was occupied by the as-
signees of the parties to a lease for life or years (19 N. Y., 92), and
thus changed the assignment to a lease, thereby establishing the

16

same feudal relations between the parties, both original and deriva-
tive, as mii^lit have been established had the feudal law been in force
as it existed in England before 1290. (Van Rensselaer v, Heidon,
decided Sept. Term of thin court, 1860).

II. The statute of 1805, with such an application and construction
impairs the obligation of the contract by which the estate in fee was
held of the state, and is, therefore, so far, void, because in conflict
with the provisions of the constitution of the United States, which
prohibits a state from passing any law impairing the obligation of
contracts (art. 1, sec. 10, sub. 1).

First. The estate in fee held by the defendant is the same which
belonged to the senior Van Rensselaer, and which he transferred t'»
Lodewick Ponesteel in 1794. That estate was the executed contract
of the state, that the grantee and his heirs and assigns might enjoy
the possession of the premises forever. The obligations of that con-
tract still continue. De Peyster v. Michael, 2 Selden, 467. Van
Rensselaer v. Hayes, 19 N. Y., 68.

Second. It was a contract within the provision of the constitution.
This proposition has been repeatedly decided. Fletcher v. Peck, 6
Cranch R., 87, 136. New Jersey v. Wilson, 7 id., 164. Dartmouth
College v. Woodicard, 4 Wheaton, 656.

The rule of those cases has been uniformly adopted and is placed
beyond question. Story on the Constitution, § 1376.

Third. The defendant held the premises as the assignee of that
contract, of which the state was the party of the first part. 2 Sel-
den, 504. 5; 19 N. Y., 73, 4.

And if liable in this action, his liability arises from that fact. But
that contract did not require the payment sought; and if the act of
1805 was intended to impose such a requirement, it would impair the
obligations of that contract which still continue. The People v. Piatt,
17 John., 195.

In this case, the state granted lands in 1784' to one Piatt, in fee,
the premises granted including the Saranac river. In 1786, Piatt
erected a dam across the river near its mouth. In 1801, an act was
passed requiring the owners of dams to alter them, so as to allow
salmon to pass. The statute was reenacted in 1813. In 1817, the
defendant's dam not being conformed to the requirements of the stat-
ute, was indicted as a nuisance. It was held that the statutes, so far
as they atfected the r ghts of Piatt and his assigns to the Saranae,
within the limits of the grant to him, impaired the obligations of the
contract under which he held, and were unconstitutional and void
(see pp. 215, 16).

This case followed Fletcher v. Peck, and Xew Jersey v. Wilson,
before cited. In the last, there had been a grant in fee of lands with
the provision that they should be exempt from taxation. It was held
they could not be subjected to taxation by a repeal of the provision.
The same doctrine was held in Atwa'ir v. Woodbridge, 6 Con., 230,
and in Osbom v. Humphrey, 7 Con., 341. Story on the Constitution,
§1391.

The rule of those cases applies to this. The defendant here is
claimed to be liable because of his holding an estate in fee, immedi-
ately of the state, in other words, because he holds as the assignee of

17

a contract of which the state is party of the first part. The defend-
ant lias no connection with any other contract, and that contract im-
poses no such obligation as claimed in this action. The statute,
therefore, which should impose this additional obligation, would im-
pair the obligation of that contract.

III. The statute of 1805, construed to make the defendant liable
upon the covenants of Lodewick Bonesteel in the deed of 1794,
would impair the obligation of that contract and would be, therefore,
void.

First. That indenture did not create a new tenure or new estate.
In other words it was not a contract for the holding of the lands, but
the assignment of the contract by which they were before held of the
state. It was the ordinary executed contract of bargain and sale by
the one party, with a covenant by the other, as vendee, for the pur-
chase price. As the common law existed here when the contract was
made, this covenant did not run with the land. 19 N. Y., 73, 4; 27
Barb., 173.

Second. At that time there was a statute applicable to the inden-
ture, which provided that every purchaser of an estate in fee should
hold the lands or tenements so purchased "of the same fee, by the
same services and customs by which the person or persons making
such gift, sale or alienation, before held the same lands or tene-
ments," (I R. L,. 70, sec. 1). If nothing else had been in the way,
the statute would have prevented that contract from imposing the
covenant of Lodewick Bonesteel as a service or condition by which
the estate purchased was afterwards to be held.

Third. The contract must be interpreted and its character and
effect determined by the laws of the state in force and applicable
when the contract was made; and the statute of 1805 and its re-
enacments, so far as intended to change those laws and thus change
the character and effect of the contract, impaired its obligation, and
were therefore in conflict with the constitution and void

See authorities cited under second point, and Proprietors of the
Kennebeck Purchase v. Laboree. 2 Maine Rep„ 275.

In this case the statute bad changed the common law rule as to
disseisin. Held it could not have a retroactive effect because the
constitution secures the citizen against the retroactive effect of legis-
lation upon his property; and, that the statute retroacts which
creates a new obligation or imposes a new duty (pp. 287, 290-5).
Ogden v. Sanders, 12 Wheaton. 259; Sturges v. Crowninshield, 207;
Mather v. Bush, 16 John., 233; Bronson v. Kinsie, 1 How. U S., 319;
Planters' Bank v. Sharp, 6 id., 210. 11 ; Varick's Ex'rs v. Briggs. 22
Wend., 543; Lessee of Gantly v. Eusing, 3 How. TJ. S., 707.

Fourth. The legislature could not make the defendant liable for a
debt contracted before the act.

This has been held in regard to a statute giving towns a right to
sue paupers for moneys expended in their support. It could -not em-
brace expenses incurred before the statute. Medfor v. Learned, 16
Mass., 216.

The same doctrine has been held as to statutes declaring stock-
holders of corporations individually liable. It could not make them
liable for debts contracted before the act. Coffin v. Rich., 45 Maine
R., 507. 2

l*

IV. Construe the indenture by the laws of the state in force when
it was made in 1794, and the defendant was not liable.

First. Our laws then in force bearing upon this case, were precisely
like the laws of England. 2 Selden. 504, 5; 19 N. Y.. 76.

Second. By those laws it was necessary that there should be either
a privity of contract, or a privity of estate between the parties in
order to make one party the debtor of tho other.

In McKercher v. Hawley, 16 John.. 292, Spencer. Ch. J., said:
" If there be no privity of contract or estate, most certainly an ac-
tion could not be maintained.''

In Webb v. Rustell, 3 Term Rep., 403. Lord Renvoi) stated the
rule thus: " It is not sufficient that a covenant is concerning the
land, but in order to make it run with the land, there must be a
privity of estate between the covenanting parties.''

The same rule is adopted in Dally v. Wells. Wilmot's Notes, 344;
Allen v. Culver, 3 Denio, 297; Dclph v. White. 2 Reman, 301.

Third. "Privity of estate is the result of tenure; it subsists by
virtue of the relation of landlord and tenant.'' 2 Piatt on Leases, p.
351; Bouvier's L. Die; Sugden on Vendors and Purchasers, pp. 713,
14; Chambers' L. and Ten.. 479, 80; Taylors Lan. and Ten., §436;
Woodfall's Lan. and Ten., p. 214, and p". 580, 7th ed., and all the
other elementary writers upon this subject.

See also the cases cited under the second proposition of this point.

The cases holding that the undertenant is not liable upon the les-
see's covenants are in point. They are put upon the ground that
there is neither privity of contract nor privity of estate between
such parties. Taylor's Lan. and Ten. §448; Holt or v. Hatch, Doug.
R., 183; Quackenbushv. Clark, 12 Wend., 555; Cole v. Marquand, 2
Hill. 449.

V. Between the vendor and the vendee of an estate, there is no privity
of estate such as is required to fasten the obligations of the covenants of
the vendee upon subsequent purchasers. They are privies in estate,
that is, the estate has passed immediately from the one to the other.
But this is a kind of privity, which, in the language of Coke. " is ever
immediate " (Co. Litt., 271, a). It cannot be transferred so as to
exist between their assignees, making them vendor and vendee.
Lessor and lessee are also privies in estate; but that kind of privity
between them " is ever immediate.'' and cannot be transferred >o that
their respective assignees will be to each other lessor and lessee.
But there is between lessor and lessee another kind of privity, to wit,
a privity by tenure. The right of possession of the lessee is derived
from the contract of lease; and that contract attaches itself to the
land; to the estate left in the lessor on the one hand, and to the es-
tate created by the instrument itself on the other. The privity so
constituted is what is called the privity of estate.

"A lessee, during his occupation, holds both by privity of estate
and of contract. His' privity of estate depends upon and is co-existent
with the continuance of his term. By an assignment he divests him-
self of this privity and transfers it to his assignee; it remains an-
nexed to the estate, into whose possession soever the lands may pass,
and the assignee always holds in privity of estate of the original
landlord. The privity of contract, however, is not transmitted to a

19

purchaser, on an assignment by the lessee; for it will, during the
whole term, be obligatory on him and his personal representatives,
even for breaches after an assignment." Taylor's Lau. and Ten.,
§ 436, and authorities there cited.

The contrary doctrine that privity of estate, as used in the books,
is only the privity which exists between vendor and vendee, has no
foundation in principle or authority (See opinion of the court below
in this case, fols. 73-76).

First. As a question of principle, there is this difference between
a contract of lease and a contract of assignment. The first is a con-
tract granting the right of possession to certain lands. The second
is merely an assignment of that contract by one of the parties. The
first fixes the terms and conditions by which the lands are to be held.
The second merely assigns the right to so hold to another party.

There is an obvious propriety why the first should attach to the
lands. It is indispensable to the existence of an estate, for without
the contract there is no estate. The party in possession of lands who
denies that he holds by any contract with another person, or with the
state, denies the right to hold at all; in effect admits himself to be a
trespasser. He is forced by the very exigencies of any legal claim to
a rightful possession of lands, to admit the contract under which he
holds; and when he has admitted it, he is bound to fulfill the obliga-
tions of that contract. He is forced to admit himself to be a party
to the contract, because otherwise he has no rights; and while a party
he is not at liberty to deny the obligations of the contract.

Hence, whenever the lessor transfers his reversion, his side of the
contract of lease passes along with it; and his assignee becomes enti-
tled to all the benefits and subject to all the burdens of the contract
of lease, during the time he is assignee, to the s;ime extent and with
the same effect, as the lessor. And when the lessee assigns his es-
tate, his side of the contract passes with its benefits and burdens, to
his assignee. The respective assignees of the contracting parties be-
come thus mutually bound to each other The one holds possession
of lands of the other by the sam contract made by their assignors.
That connection is what is called a privity of estate; and that is the
tie which connects them together, so as to make the one personally
liable to the other; and the relations of that tie are called landlord
and tenant.

But there is no reason or propriety why the assignment of a lease
should attach to the lands, or to the estate assigned. An assignment
is not a contract for the possession of the lands. It is only a trans-
fer of such a contract. The respective assignees of a lessor and a
lessee, have come to their relations to each other, through different
assignments. They may be personally bound to their assignors by
their respective contracts of assignment. But as between themselves,
there can be no obligations in regard to their respective assignments,
because there is no privity between them as to those contracts. Con-
tracts of assignment do not attach to the lands, because neither party
on assigning can change the contract by which the lands are held.
When a man becomes the owner of an estate by an assignment, he
finds the obligation of his position, in the contract of lease which cre-
ated that estate ; and not in the several contracts of assignment,

20

through which it may have come to him. Such was the common
law in regard to all estates in lands. Moreover, as to estates in fee.
there was a Statute in force here in 1794 when the assignment was
made upon which tins action was brought, which secured the same
result by providing that the purchaser "should take of the same fee
and hold by the same services and customs, bv which that fee was
before held. 1 R. L.. p. 70, sec. 1.

Second. As a question of authority, this difference between a lease
and an assignment is well settled. In Hurd v. Curtis, 19 Pick Rep.,
463, the court, per Wilde J. declared: "There is no exception to
the rule, that no covenant will run with the land so as to bind the
assignee to perform it, unless there were a privity of estate between
the covenantor and covenantee."

In other words, the contract must be one granting the right to the
possession of lands, and the covenant must relate to the holding of
the lands under, that contract, and then the assignee of the estate
becomes a party to such contract, and is bound by the covenants.

The same principle was applied by the same court in Morse v. AU
drich, 19 Pick., 454. There had been a contract or grant of the right
to dig muck on the one side, and a covenant in regard thereto on the
other. The court held the assignee liable, on the ground that the
contract was a grant of a subordinate interest in the lands and the
reversion being left in the grantor, there was a privity of estate be-
tween the gran'or and grantee of the same kind as exists in the ordi-
nary case of lessor and lessee.

In Smith's Leading Cases, notes to Spencer's case, the English an-
notator, after reviewing all the English cases upon the subject, says:
"Upon the whole, there appears to be no authority for saying that
the burden of a covenant will run with land in any case, except that
of landlord and tenant " (pp. 37-8).

The same distinction between a lease and an assignment, was taken
by Lord Brougham in Kejpel v. Bailey. 2 Mvlne &. Kcene, 517. See
also Randall' v. R-by. 4 Mees. & VYels.. 130; Tayl r v. Owen, 2
Black Rep.. 301, and Dolph. v. White. 2 Kernan, 299.

There is no reported case or elementary work which denies this
extinction between a contract of lease and a contract of assignment,
except the decision in the court below in this case. This will appear
obvious by a reference to what have sometimes been referred to as
excepts.

("0 ^he covenant of assurance and warranty by a vendor to the pur-
chaser, thv benefit of which is held to so pass with the estate sold,
that 3ubseqbL.nt purchasers in certain cases, may sue thereupon, is
not an exception, jt involves no question of privity of estate, but
only a question 0f sameness of estate. The liability of the covenan-
tor arises from h i3 privity of contract, and the estate sold serves
only as the medium 0f transmitting the covenant to the subsequent
purchaser, and thus p.lHcing him in privity of contract with the cove-
nantor. The only question in regard to the estate which can arise in
connection with the plaintiff's right to sue in such a case is whether
he has the same estate whi'ch was s rid when the covenant was made.
The assignee of the covenantor in such a case would not be liable, as
in the case of a similar covenant by a lessor for the want of that pri-

21

vity of estate which is peculiar to a lease. This was so conceded by
this court, except as it was held that the assignee of the covenantor
was made liable to such action by the retroactive effect of the act of
1805. Van Rensselaer v. Ball 19 N. Y., 106.

(2.) The earlier cases in this state, such as Watts v. Coffin, 11
John., 495; Lush v. D/use, 4 Wend,, 313; Van Rensselaer v. Brad'
ley, 3 Denio, 135; Van Rensselier v. Gallup,, 5 Denio, 460, were not
exceptions to the rule, Those cases were tried upon the assumption,
that the contracts sued upon were leases and created a privity of
estate. The rule as to privity of estate was expressly stated in 5 De-
nio, 460.

It is true this court has since held, in similar cases, that the as-
sumption that such instruments were contracts of lease was an error;
that they were contracts of sale or assignment, But does that make
the previous decisions authority that it is immaterial whether they
were so or not? Does it make them authority that the covenants of
a vendee attach to the estate purchased so as to fall as a burden upon
all subsequent purchasers?

The more recent cases, such as Van Rensselaer v. Smith, 27 Barb.,
104, are not exceptions, but express authority for the rule as to the
privity of estate which we contend for. They expressly held that
no such privity existed between vendor and vendee (27 Barb., 173);
and they put the liability upon the ground that the statute of 1805
and its reenactments, by its retroaction, had made the relation of
landlord and tenant to exist, and thereby created the requisite priv-
ity of estate.

(3.) The decisions of other states furnish no exceptions. In Penn-
sylvania, the courts have held leases in fee to exist on the ground
that the statute quia emptores was not a part of the laws of that state.
The case of lngersoll v. Sergeant (I Whart., 337) is not in conflict
with the other cases. It differs only in more particularly passing
upon the question of the necessity of privity of estate.

McMurphy v. Minot (4 N. H., 251) is not an exception. The
owner of a life estate had leased to the owner of the remainder for
an annual rent. He mortgaged to defendant. The Court held the
mortgagee liable. But no point was made as to privity of estate. The
Court assumed the instrument to be a lease, and held the defendant
as mortgagee to be liable,

(4). The doctrine put forth by Judge Willard, in his work upon
real estate and conveyancing, is not in conflict with this distinction
between a lease and an assignment, but fully concurs with it. He con-
cedes all the distinctions which we contend for: that there must be a
lease, and to make a lease there must be a reversion left in the lessor.
But he contends that actions have been maintained by calling assign-
ments leases, and calling the parties thereto lessor and lessee and
landlord and tenant, and then applying the laws of landlord and
tenant with like effect as though the parties were really what they
were called. Willard on Ueal Estate, &c, pp. 207, 208. 425, 431.

In connection therewith, he claims that there is a principle or cus-
tom in our jurisprudence, whereby the laws can be changed by
changing the- phrases used to designate parties and their relations,

2->

without regard to tlie fact that then- is nothing behind those phrasca
corresponding with them.

The learned author evidently misstated his own thcorj*. It is not
a change of the lawn which is thus hi ought about, but a change of
the rights of parties, by perverting or misapplying the laws to cor
respond with this iiilitrury u^e oi namcH

VI. In conclusion, it is therefore submitted, thai the fh Pendant, in
seeking to reverse this judgment, is not invoking any chance of the
laws; because none of the authorities are applicable to sustain it.
unless the statute of 1805, with its reenactments, is first made to re-
troact upon the contracts in question; and when so construed, the
statute impairs the obligation of the contract by which the estate in
fee was held of the state, as well as the contract by which that estate
was assigned to Lodewick Bonesteel in 1794, and is, therefore, un-
constitutional and void.

First. That the defendant held the estate in fee under a contract
with the state, and not under the contract with Lodewick Bonesteel,
is conceded by the court below, in the opinion annexed to the case;
and so far that opinion is sustained by the decisions of this court.
2 Selden, 504-5, and 19 N. Y., 73-4.

Second. It is equally well settled, that the state could not, by a
statute made after the contract by which the estate in fee was held,
change that contract, or impose further obligations upon it, and could
not change the character and effect of the contract of 1794, so as to
attach its provisions as obligations to the contract by which the estate
in fee was held.

Third. That the owner of the estate could not, by an assignment
in 1794, change the obligations of the contract under which he held
of the state, by adding thereto further obligations, is a rule as old as
the common law itself

1. The English statute quia emptores, was founded upon that rule,
and moreover, added an express provision, that purchasers of an es-
tate in fee, should continue to hold by the same services and customs
as the vendor had before held. Our own legislation, in our statutes
and present constitution, has recognized and preserved the same
principle.

2. The same rule has been uniformly adopted by the courts. It
has never been held that a tenant of an estate, whether in fee., or for
life or years, could change the terms of the contract under which the
tenancy was held by an agreement with his asssignee.

A. BINGHAM,

Of Counsel.

23

In the Court of Appeals.

Stephen Van Rensselaer, Respondent, agt. John Read, Appellant.

Points for Appellant ; Statement of the Case.

This was action for breach of the covenants of one George Reed,
made in 1789; action commenced in July, 1*60, and tried January,
1861, at the circuit, and judgment for plaintiff. The questions are
presented by a case and bill of exceptions.

The facts relied upon to sustain the judgment, are that S. Van
Rensselaer, deceased, in 1789, sold and conveyed certain lands to the
said George Reed., and he, in consideration thereof, covenanted to de-
liver yearly 17^ bushels of wheat, 4 fat fowls and to perform ono
day's service with carriage and horses (foIs.8-10); that defendant
became the owner of the same estate on the 1st of January, 1840,
and continued such owner until the commencement of this action
(fol. 46). The plaintiff claimed to acquire the right of action upon
the covenants by the will of the covenantee, the clause of the will
relied upon being as follows: " I give, devise and bequeath unto my
son Stephen, his heirs and assigns, all the residue of my lands, tene-
ments, hereditements and real estate, with the rents, issues and pro-
fits thereof, situate in the manor of Rensselaerwyck on the west side
Hudson river.

The defendant moved for a nonsuit which was denied, and excep-
tion was taken by the defendant (fol. 36, et seq.) Judgment was
given for plaintiff for $561.68, to which the defendant excepted.

The questions presented were that the plaintiff was not the grantee
of the rent, and bad no right of action on the covenants.

That the deed to George Read containing the covenants was not a
lease but an assignment, and the covenants did not attach to the
lands as a burthen to subsequent purchasers.

That the defendant did not hold the lands under the contract to
George Read, but as the tenant in fee of the state, and that chapter
98 of the laws of 1805 did not apply to this case when it was tried,
by reason of such application being unconstitutional, and by reason
of chapter 396 of the laws of 1860, preventing its application.

The points in the case of Van Rensselaer agt. Henry Bonesteel are
to be regarded as applying to this case, and in addition thereto the
following

Points.

VII. There is another reason in this case why the judgment can
not be sustained by force of the act of 1^05. Chapter 396 of the
laws of 1860. declares that that statute and its rienactments shall
not apply to deeds of conveyance in fee made before the 9th of April,
1805. It has been objected' to the act of 1860. (33 Barb., 137):

First. That a deed like the one upon which this action is brought
was not a conveyance in fee, and. therefore, not within reach of the
last named act.

The answer to that objection is, that it is one of the undisputed facts
of the case, that the grantor before executing the deed, owned an es-
tate in fee; and it is a point settled by the decision of this court that

24

the entire estate of the grantor was conveyed to the grantee by the
effect of the deed (19 N. Y.. 68). Hence it can be nothing more nor
less than a deed of conveyance in fee. The naming of rents could
not make it any less than a conveyance in fee, for even a lease in fee,
if there could be one, would be equally a conveyance in fee. But
the argument concedes that it was the act of 1805 which changed
the instrument Iroin a conveyance in fee; so that, if that act is
not applied, the difficulty of applying the act of 1860 will not exist,
and the application of the latter act prevents the application of the
former.

Second. It is also urged that the statute of 1860 can not be made
retroactive for a two-told reason : ( 1 ) because such was not the intention
of the legislature; and (2) because the constitution would prevent a
retroactive effect.

It is a sufficient answer to the first objection that the statute is
made retroactive by its very language, expressly reaching back to
deeds made before 1805.

The second objection is equally unfounded. The plaintiff had
neither right nor remedy, as against the defendant, except what had
been given to him by the act of 1805, and its reenactments. The rule
is, that when a right of action has been given by statute, it does not
become a vested right until after judgment, and consequently can be
taken away by statute at any time before judgment. Coffin v. Rich,
45 Maine Rep., 507, 14; Oriental Bank v. Freest, 18 Maine Rep.,
109; Butler v. Palmer. I Hill, 329; Commonwealth v. Hampden, 6
Pick., 501 ; Same v. Kimball, 21 id., 373.

VIII. The defendant was not liable, on the ground that the rent
was a rent charge. The covenant to pay did not attach to
the estate in the lands as a service or burden thereupon, so as to
bind subsequent purchasers. The doctrine that the covenant to pay
a rent charge runs with the land so as to bind subsequent purchasers
has no support in the authorities, and can not be sustained upon
principle.

First. As a question of authority, the elementary writers upon the
subject generally concur that such a covenant cannot be made to run
with the estate in the lands which the grantor of the rent charge held
at the time. Piatt on Covenants, pp. 65, 475; Rawle on Covenants
for Title, chap. 8, p. 34 1; Burton on Real Prop, § 1102; 1 Smith's
Leading Cases, notes to Spencer's case, p. 129 et seq., 4th Am. Ed.

Such has been the doctrine ot the reported cases, so far as an ex-
pression upon the question has been elicited. Brewster v. Kidgell,
Modern 170; Randall v. Rigby, 4 Mees k Wei., 130; Ingersoll v. Ser-
geant, I Wharton. 337.

It is true there is no reported case where such a point seems to have
been distinctly made and passed upon, except Ingersoll v. Sergeant, 1
Wharton, 337; and in that case the decision was made to turn upon
the point that the rent was a rent-service and not a rent-charge; and
that there was a difference between the two as to attaching to the
lands as a burden.

No elementary writer seems to have thought otherwise unless Sug-
den's work on vendors and purchasers be an exception. He cites but
one case which he claims to hold the contrary, namely, Holmes v.
Buckley, 1 Eq. Ca. Ab., 27, See 2 Sugden, 486.

25

That was a case where the owners of land granted a water course
through it to a man and his heirs, and covenanted for themselves,
their heirs and assigns, to cleanse it, and the covenant was held to
bind the land in the hands of an assignee.

This case is like Morse v. Aldrich, 19 Pick.. 4J9, and can be sus-
tained on the same principle. There was a grant or contract for the
possession of the lands for a specified purpose, which created a privity
of estate between grantor and grantee, the reversion remaining in the
grantor. It bears no analogy to a case brought upon the covenant to
pay a rent-charge.

He cites Roach v. Wadham, 6 East, 289, where the defendant suc-
ceeded on another ground; and where this point might have been
raised but was not, and after criticising some of the authorities which
held against him he concludes as follows:

"Upon the whole it is submitted that covenants like those in Brew-
ster v. KidgeU ought to be held to run in both diiections; with the
rent or interest carved out of or charged upon it in the hands of the
assignee, so as to enable him to sue upon them: with the land itself
in the hands of the assignee, so as to render him liable to be sued upon
it," see p. 492.

This is all there is of athority in favor of such a doctrine; and the
author does not pretend to find such a rule, but merely expresses his
own view, that it ought to be so.

Second. As a question of principle, the doctrine that a covenant to
pay a rent-charge attached to the estate in the lands as a service or
burden by which that estate was afterwards to be held by subsequent
assignees, can not be sustained.

Such a contract bears no resemblance to a contract which grants
the right of possession and reserves a rent as the return or compensa-
tion for the possession. A rent-charge is an annuity granted by the
tenant of an estate with a contract provision to enter upon the lands
and make the amount by taking personal or chattel property. It is
an incorporal hereditament in gross; that is, neither appendant nor
appurtenant to the lands. Williams on Real Property, pp. 265, 273;
Van Rensselaer v. Chadwick, 22 N. Y.. 32. As there is nothing in its
nature or character which can change the covenant from a personal
one to effect the estate of the covenantor, the real question is whether
the tenant of an estate in lands can add further obligations to the
contract under which his tenancy is held, so that subsequent holders
of the same estate shall be personally liable to fulfill such additional
obligations as a service or condition incident to the estate. In other
words the question is whether one party to a contract can change its
obligations without consulting the other, and merely by making an-
other contract with a stranger.

This is a very different question from the one, whether the cove-
nant to pay a rent-charge runs or passes with it to the grantee of the
rent-charge so that he can sue the covenantor. Upon that question
there is a conflict of the authorities, 19 N. Y., 78, 81.

That it may have been charged upon the lands creates no personal
liability upon the purchaser.

26

A charge by devise creates no personal liability, Deeks v. Strutt,
5*2 Term Rep., 690; Griffin v. Shonnard, 18 John., 428; Kelsey v.
Western, 2 Corns., 507.

Nor does a charge upon lands by a mortgage impose a personal lia-
bility upon the subsequent purchaser of the estate, Stebbins v. Hall,
29 Barb., 533 ; Belmont v. Coman, 22 N. Y.. 439.

That payments may have been made does not create a liability to
continue to pay. Child v. Chappell, 5 Selden, 257.

Nor does it work an estoppel upon the defendant that he shall not
deny his liability, or insist upon his actual rights, Lounsbury v. De-
pew. 28 Barb., 48; Phelps v. /'helps, id., 152

IX. But this case does not depend alone upon common law rules.
The covenant was made by a purchaser in 1789 of the estate in fee.
Section 1 of the statute concerning tenures, was then in force, and
expressly provided that the purchaser should hold the estate by the
same services and customs by which the vendor had before held. 1 R.
L., 70. The purchaser was not restricted from binding himself per-
sonally by that statute, but his personal obligations could not attach
to the fee as a service or burden to be thereafter incident to the
estate.

There was no room for doubt as to the meaning and intention of
the statute. It was substantially a copy of the English statute of
1290, which has been ever since in force in England. It has never
yet been denied but that the English statute was effectual to prevent
the covenants of a purchaser of an estate in fee from attaching as a
burden to the estate purchased. The criticisms of Sugden in regard
to a rent-charge did not include such a case.

X. The plaintiff did not become the owner of the covenant upon
which the action is brought by the will of his father.

First. The testator devised such estate or interest as he held in
lands, and such rents only as were incident to such estate or interest.
Such is the obvious meaning of the language of the devise relied upon.

Second. The testator, at his death, was not the owner of the lands
in question, nor of any estate or interest therein. The allegation of
the complaint, (fols. 6. 17 and 18) the evidence and the finding of
}he court. (fols. 44, 46), are conclusive as to this fact. As a question
of law, the effect of the deed of the testator to Geo. Read is settled
as leaving no estate in land in the grantor. 2 Selden, 467, and 19 N.
Y., 68.

Third. The testator, at the time of his decease, was the owner of
the rent and the covenant to pay it. But this was not an estate in
the land, but a mere chose in action (2 Selden. 506; 19 X. Y., 91).

It was an incorporeal hereditament in gross; neither appendant
nor appurtenant to the lands (Williams on Real Prop. ch. 4, p. 265.
273) and could not therefore pass under a devise of the lauds. Had
the testator intended to pass the property in any rents except those
which were attached to lands owned by him. he would have so ex-
pressed his intention. The devise specifies rents incident, to the
lands belonging to the testator, and names no other. The fair infer-
ence is that he meant no other. The legal construction results in

27

the same conclusion. Herrington v. Budd, 5 Denio. 321. ^Payne v.
Beale, 4 Denio, 412.

Fourth. But supposing the rent charge passed by this devise, the
covenant to pay it did not, directly. It could not pass except as an
incident to the rent charge. There may have been a disputed ques-
tion in England, but is settled here that the covenant did not pass as
an incident; in other words, did not run with the rent-charge. 19
N. Y., 78, 81.

XT. The statute of 1805, and its reenactments were held not to
pass the covenants, or make them run with the rent, but to give
the right and remedy which belonged to the covenantee. But when
this action was commenced, that statute did not apply, nor did
its reenactments, by reason of the act of 1860, before cited.

The act of 1860 was not unconstitutional, because it did not divest
the plaintiff of any vested right, but merely withheld a right which
had been given by statute.

The statute of 1805, as reenacted, will be found 1 R. S., p 747
(5th ed., 3R. S., 37).

Without that statute, the plaintiff could not bring an action upon
the covenant, because the covenant did not pass as an incident. The
statute did not give him the covenant, but only the same remedies by
action as the testator had. This statute bears no analogy to the pro-
visions of the Code requiring every action to be brought in the name
of the real party in interest. The Code cannot aid the action, be-
cause it gives neither rights nor remedies; and without the aid of the
act of 1805. the plaintiff had neither right nor remedy upon the cove-
nant.

The statute of 1860 took away all that was given by the act of 1805.

This is a different question from the one in regard to the liability
of the defendant as created by the one statute, or as taken away by
the other, but the authorities cited to the second proposition of the
seventh point, fully sustain this point.

A. BINGHAM,

Of Counsel.

In the Court of Appeals.

Stephen Van Rensselaer, Respondent, agt. Albert Slingerland,

Appella tit.

Points for Appellant; Statement of the Case.

This was an action of ejectment, commenced in 1856 — tried in
September, 1860 — and judgment for plaintiff, to which exceptions
were taken by the defendant.

The facts relied upon by defendant, were that on the 9th of June, 1790,
S. Van Rensselaer, decased, was the owner in fee of the premises in
question, and on that day sold and conveyed the same to Gerrit Sea-
ger, the purchaser agreeing to pay 15 bushels of wheat, 4 fat hens,

28

and to perform one day's service with carriage and horses, yearly, in
consideration of the sale and conveyance ; and further agreeing, that
if he failed in fulfilling his agreement, the grantor might enter and
distrain, and for want of distress, might renter and have the premi-
ses again; that defendant became the owner in fee of the same estate
in 1847, and remained such owner up to the commencement of the
action, and in the meantime failed to deliver the wheat and hens and
perform the services according to Seager's agreement ; that plaintiff
served a 15 days' notice, and more than fifteen days thereafter com-
menced his action.

A motion for non-suit was made and denied. The grounds of the
motion were:

1st. That the deed to Seager was an assignment.

2d. That plaintitf had failed to prove a"U estate or interest in
the premises.

3d. That the condition of reentry never came to the plaintiff, and

4th. That chapter 98 of the laws of 1805, did not apply to the case.

Points.

The points in the case of Van Rensselaer a gt. Henry Bone steel, and
Van Rensse'aer agt. John Read, are to be regarded as applying to this
case: and in addition Thereto, the following:

I. The plaintiff failed to show that he had any estate or interest
in the premises, as required by statute in order to maintain his action.
2 R. S., p. 303, §3.

In order to maintain ejectment, the plaintiff must be the owner of
some corporeal interest; something tangible, of which possession may
be delivered by the sheriff. Ejectment will not lie for an easement,
for a rent-charge, or for any other incorporeal hereditament. Adams
on Ejectment, p. 18. Northern Turnpike Co. v. Smith, 15 Barb., 354.
Rowan v. Kehey, 18 Barb., 488.

In Child v. Chappell, 5 Selden. 252, the rule is stated as follows:
" That the claim of title, or of some interest in the premises, spoken
of in the statute, must be such a claim as that, if it were reduced to
possession or enjoyment, it would constitute an actual occupation of
the premises, so as to authorize ejectment to be brought on that
ground." The plaintiff only claims to own the rent-charge, the right
to the wheat and hens and service- Allow him to have had all the
possession and enjoyment of which they were capable, no one will
claim that it would constitute " an actual occupation of the premises,
so as to authorize ejectment " against him.

The defendant owned the estate in fee in the premises, and the re-
version thereof was in the state (2 Selden, 467, and 19 N. V., 68,
before cited). That was a corporeal hereditament. The interest of
the plaintiff was an incorporeal hereditament. And there is no rule
of law by which the owner of the one interest can be eutitled to the
possession of the other confessedly not belonging to him. .

Ejectment is the recovery without prejudice to the right of pro-
perty. He who enters under it can ^nly be possessed according to

29

right. If he has a freehold, he is a freeholder. If he has a chattel
interest, he is in as a termor. If he has no title, he is in as a tres-
passer. Jackson v. Diejfendorph, 3 John., 268, 9.

II. The condition of reentry can not supply the want of title.

Fint. It is no estate or interest in the lands. De Feystcr v. Mi-
chael, 2 Selden, 479. 506. Payne v. Beale, 4 Dcnio, 412. Nicoll v.
The JV. Y. & E. R. R., 2 Kernan, 121, 139.

Second. There must be a reversion to which the condition is at-
tached and in favor of which it is to operate, and the plaintiff most
own that reversion in order to maintain ejectment. There was no
reversion in the grantor in the deed upon which this action was
commenced.

This case must not be confounded with a qualified, base or deter-
minable foe. Such a fee results from a new contract for the holding
possession of lands, and is not the assignment of a preexisting con-
tract. The base fee is a new estate and leaves the reversion in the
grantor. Such a condition is called a limitation, because upon the
happening of the contingency, the estate becomes ipso facto termina-
ted. Taylor's Lan. & Ten., §§ 272. 273.

Third. The instrument upon which this action was brought, opera-
ted as the assignment of the entire estate hfld by the grantor; in
other words, as the assignment of the contract under which the gran-
tor held the premises, and of which the state was the party of the
first part. A condition of reentry in such a deed is inoperative upon
the estate or contract transferred. The tenant on assigning, cannot alter
the terms of the contract under which he holds. All the elementary
rules as to conditions subsequent are in the way of it, as well as the
general principle of our real estate system.

The elementary rules referred to are as follows:

1. A condition must be created and annexed to the estate at the
time of making it, not at any time after. 2 Cruise Dig., p. 3, § 10.
Shep. Touch.. 126. 1 Bacon Ab.. Conditions C. and E. 2 Bl. Cora.,
351. Taylor's Lan. and Ten., §280.

The contract which gives the right of possession, in other words
the lease, is the contract which creates an estate. An assignment of
such a contract does not create an estate, and, therefore, a condition
of re-entry would be inoperative.

2. A condition can not be made by, nor reserved to a stranger; but
it must be made by, and reserved to him. that doth make the estate,
and it can not be granted over to another, except it be to and with
the laid or thing urno which it is annexed and incident, Shep.
Touch., p. 117; 1 Bacon's Ab., Condi ions E; 2 Cruise Dig., p. 4,
Tiile 13, Ch. I, § 15.

3. A condition of re-entry can operate only by putting an end to
an estate. A condition is a qualificaion annexed to an estate by the
grantor, whereby the esiate may be enlarged, defeated or created,
upon an uncertain event . Taylor's Lan. and Ten., § 27 1 ; 2 Bl. Com.,
p. 151; 4 Kent, 123; Shep. Touch., p. 177, Ch. 6.

It can not be reasonably contended that a tenant, by an assignment
of his tenancy, can annex conditions to the estate either to enlarge or
defeat the estate; and on assigning he becomes a stranger to the pre-
mises and can not be benefited by a condition of re-entry.

30

III. The party who has no reversion can not maintain ejectment
upon a condition of re-entry, Doe v. Adams, 2 Crompt. & J.. 232 ;
Same v. Barber, id., 674 ; Same v Laurence, 4 Taunt., 23; Smithy.
Parkhurst. 3 Atkins, 139; Scott v. Lunt's Adms., 7 Peters. 606.

The reason is obvious. It is no part of the functions of a condi-
tion of re-entry to transfer title from one to another. It can be used
only to obtain possession in favor of a party who has the title; and
it operates only by putting an end to an existing estate, so that the
owner of the reversion, the next preceding title or esate, may thus
acquire the right of immediate possession. For that reason a condi-
tion can not be made to a stranger. The title to an estate can not be
transferred from one to another, except by a deed in writing, 2 R. S.,
134. § 6.

If the vendor has actually made a conveyance, his title is extin-
guished in law as well as equity, and it will not be pretended that he
can maintain ejectment, Blight v. Rochester, 7 Wheaton, 548,9.

The title of the vendee, though derivative, is adverse to that of the
vendor. He enters and holds possession neither of nor for the vendor,
The Society. Ac, v. Town of Pawlet, 4 Peters, 506. 7.

The same doctrine was held in Boone v. Chiles, 10 Peters, 224 ;
and IVatkins v. Holman, 16 Peters. 54.

This doctrine has been recognized in the recent cases in this state,
which have held that the statute of 1805. and its re-enactments, made
a rent-charge into a reversion or its equivalent, and thus introduced
the relations of landlord and tenant, where they did not exist by the
contract of the parties.

But there is no principle of the common law, whereby the right of
property can be acquired by one individual from another by
forfeiture.

IV. The relations of landlord and tenant did not exist between
the parties to this action. They can be created only by a lease; and
never by the assignment of a lease. The reservation of a rent or
condition of re-entry, can not change an assignment to a lease, 2 Bl.
Com., 317; 1 Piatt on Leases, p. 19; Taylor's Landlord and Ten.,§§
16. 426, 431.

The recent decisions do not deny this doctrine, and hence the stat-
ute of 1805 is made to create the relations by retroacting upon the
deed of assignment.

In that way alone can this judgment be sustained under our statute
(2 R. S., 505, § 30). That statute is expressly limited to landlord
and tenant.

V. The plaintiff was not the grantee or owner of the condition of
re-entry. It did not pass by the devise of his father to him {Van
Rensselaer v. Ball, 19 N. Y., 104). Conditions subsequent can only
be reserved for the benefit of the grantor and his heirs ; and no other
person can take advantage of a breach. Nicot v The A7. Y. iv E R. R.
Co., 2 Kernan. 121; Payne v. Beal, 4 Denio, 405; Herrington v. Budd,
5 Denio, 321.

Neither the English Statute. 32 Hen. VIII, ch. 34, nor ours of the
same character, made such a condition either assignable or devisable.
They merely provided that grantees of reversions might " have the

31

same remedies by entry, action or otherwise," as the grantor or lessor
might have had " if such reversion had remained in such lessor or
grantor," Hunt v. Bishop, 20 Eng. Law & Eq., p. 542; and Same v.
Remnant, 24 id,, p. 54 5.

In Van Rensselaer v. Ball, 19 N. Y., 104, the statute of 1805 was
held to be indispensable to the action; that without the act the plain-
tiff was disabled from maintaining it.

In this case, before the judgment was rendered, the act of 1805,
with all its re-enactments, was made inapplicable. The plaintiff was
therefore disabled from maintaining the action. His case was brought
within 2 Kernan, 121, before cited.

The J-atter act was not unconstitutional, because it did not divest
the plaintiff of any thing. It merely withheld the remedy which the
statute of 1805 had been construed to give him. There was no saving
clause in the act ol 1860, and the legislature of 1860 certainly had as
much authority to withhold the remedy as the legislature of 1805 had
to give it upon a pre-existing contract.

See authorities cited in the case of Van Rensselaer v. Read upon a
similar point.

VI. The condition of re-entry was in violation of the statute con-
cerning tenures in force when this indenture was made in 1790, and
was therefore void (1 R. S., p. 70). It was an attempt to impose
new services and new obligations upon the estate transferred under
penalty of forfeiture. This was expressly forbidden by the statute.
The condition was not only in violation of the letter of the statute,
but of its policy and intention (see point IX in Van Rensselaer v.
Read).

A contract prohibited by statute, either expressly, or by implica-
tion, will not be enforced by the courts, although the statute does not
in express terms declare such contract void. Barton v. Port Jackson
J'l. R. Co., 17 Barb., 397; Seneca County Bank v. Lamb, 26 Barb.,
595, 601.

A. BINGHAM.

Of Counsel.

In the Court cf Appeals.

Stephkn Van Rensselaer, I'laintiff, Respondent, agt. Henry Bone-
steel, Defendant, Appellant.
Points for Plaintiff— FACTS.

This action was commenced on the 28th of April, 1855, to recover
rent under a lease in fee, by indenture dated February 13, 1794. The
complaint (fol. 6 to 25), the demurrer (fol. 33 to 36), the judgment
entered thereon October 19, 1858 (fol. 53), and the appeal to this
court on the 26th April, 1860 (fol. 57), present all the facts and ques-
tions in the case.

32

First I'oint. Every question raised by the demurrer and involved
in the judgment, has been fully decided by the court of appeals in
several cases, and particularly in the case of Church v. Ihidon, de-
cided on a similar demurrer, in October term, 1860, after the law of
i860 was passed.

Second Point. The law of April 14. 1860 (chap. 396), enacting that
the law of April 9. 1805 (chap. 98), and its recnactments in R. L.
and 1 R. S.. 747. § 25, shall not apply to deeds of conveyance in fee,
made before April 9. 1805, &c. can not affect or destroy the plain-
tiff's judgment, nor the rights upon which the judgment is founded.

1. The judgment appealed from was entered nearly two years before
the law ul i860 was passed. This question, therefore, had no existence,
and was not raised or " actually determined " in the Supreme Court,
and cannot be considered on appeal in this court of review. Magi*
v. Baker, 4 Kernan, 434.

2. The rights of the parties having been "carried into judgment,"
ceased to be executory, " and stood independently of any statute,'*
when the law of 1860 was passed. The judgment cannot be destroyed
even if the statute had been necessary to sustain any of the proceed-
ings thereto, and had been absolutelv repealed. Butler v. J aimer, 1
Hill. 324, 333, 336; Key v. Goodwin, 4 Moore & Payno, 341, 345;
Palmer v. Couley, 2 Comst., 182.

3. The plaintiff, whether he claims as devise^ or assignee, or both,
is entitled to the rent, and could, at common law, recover upon the
covenants in his own name and legal right (Scott v. LmVs Adm'r, 7
Peters, 606, and other cases cited in 19 N. Y. R. 97,99). At all
events, " he could have prosecuted in the name of the grantor, or his
heirs, for the benefit of the equitable owner.'' (19 X. Y. R. 85).
If no legal remedies remained, he could recover in equity. (Story '»
Eq. Jur.. 705, 712; 1 Paige, 90; 4 John. Ch.. 287; 13 Price, 721; 2
Sch. L Le.. 109; 1 Mer., 53; 8 Barr., 28). By the Code, §§69, 111,
all distinction between legal and equitable remedies is abolished, and
•' the one civil action " which the plaintiff h s brought, is the only
form now permitted, and is sufficient to entitle him to recover upon
anv legal or equitable grounds. 19 N. Y. R., 85; 4 Selden, 119; 1
Grey's Mass. Rep., 327.

N. B. For further points on the effect of the law of 1860, see the
pouts (in Van R. v. Sluigerland, herewith argued), which are annexed,
and referred to without repetition.

In the Court of Appeals.

Stephen Van Rensselaer, Respondent, agt. Albert Slingerland,

Appellant.

Points for Plaintiff, Respondent.— FACTS.
The judgment appealed from was for the recovery, for nonpayment
of rent, of the lands granted by indenture, or lease in fee, dated July

33

9, 1790, between Stephen Van Rensselaer, grantor, and Gerrit Sager,
grantee. (See fol. 60, refering to the complaint, for grant, fol. 31 to
33; for rent, fol. 33 to 34; for distress, fol. 36, 38; for condition for
re-entry, fol. 39; 42, will of S. V. R., fol. 61, 62; default in payment
of rent, fol. 63, 48; service of notice of intent to re-enter, fol. 49 to
51). The indenture, if necessary, can be read in full, as agreed (fol.
64) and a copy of similar indenture for another farm will be found in
the case of V. R. v. Petrie, herewith argued. The plaintiff claims, as
devisee of his father, S. V. R., the grantor, who died 29th January,
1839, (fol. 61, 62), and the defendant was the assignee of the estate
of the grantee, G. Sager, by deed dated in January, 1847, (fol, 62),
and was in possession when the notice of re-entry was served, (fol.
64, 49, 50), and when this action was commenced in August, 1856.
The facts as found on trial, will be found stated as briefly as possi-
ble, fol 71 to 82.

First Point. The questions are all raised by the motion for non-
suit, (fol. 65 to 68), and those upon the alleged grounds, numbered 1,
2, 3, 4, have been fully considered and decided by this court, V. R.
v. Ball, 19 N. Y. R., 100; V. R. v. Hays, ib. 68; V. R. v. Snyder, 3
Kernan, 299.

The questions arising on the 5th and 6th alleged grounds have also
been decided upon the law, as then existing, in the same cases above
cited, which govern this case, unless the statute passed four years
after this action was commenced, on the 14th April. 1860, (chap.
396), enacting that the law of April 9. 1805, (chap. 98), and its re-
enactments in the R. Laws and R. S., (1 vol., 747, § 25), " shall not
apply to deeds of conveyance in fee made before April 9, 1805,'' &c.,
affects and destroys the plaintiff's rights to the rents, and the remedy
by re-entry given to assigns by the indenture.

As to that, the following points are made:

Second Point. Without the help of any statutes, and by force of the
express words and agreement of the parties, the assigns are entitled
to the rent, and all the remedies, including the re-entry, given to them
by the indenture.

1. The rent-charge, as a hereditament, was always devisable, and
assignable at law, and passed by grant, by either of the words, rent,
hereditament or tenement, (Comyn's Dig. Title, Assignment A. Tit.
Grant C. D. E. 1, E. 3. Tit. Estates by devise, L. and notes; 2 Roll.,
57, 1. 15), and carried with it to the assignee the right to an action
on the covenant, in his own name, V. R. v. Hays, 19 N. Y. R,, 85,
and cases cited.

2. By the express words of the indenture, (fol. 8 to 16), the rent,
as the principal thing, and the incident, inseparable, remedial con-
tract rights of distress, action, and re-entry, are all given, not only to
the original party, S. V. R., but to his heirs and assigns, (i. e. the as-
signees of the rent, Henningway v. Fernandes, 13 Simons, 228), for-
ever, and are assignable at common law, (Scott v. LunVs Admfs, 7
Peters, 606: V. R. v. Hays, 19 N. Y., 86, 97, 98, 99, and cases there
cited; Main v. Green, 32 Barb., 457, 458). In Comyn's Dig. Tit.
Grant (C), it is said that a right of common sans nombre in fee, could
be granted over, and, Ibd. (D.), that a common sans nombre for life

3

34

or years could not. So, it seems of a rent-charge, for Maunds' case
decides that the express words of the grantor make a rent-charge
granted, pr, consilio, ic, to A, and his assigns, for his life, and the
incident right of distress, assignable, for in that respect, modus et con-
venlio vmcunt legem, (Coke's Rep., Pt. vii. p. 1 12). In feoffments
tenor est observandus; modus legem dat donatiom, (Wright's Ten., 151.)

3. If the contract was of such a nature that the parties did not fear
vexation arising from assigns, they could agree that the rights should
go to assigns, as well as they could give assigns the benefit of a war-
ranty, or other covenant, or chose in action running with an estate.
Many instances of such an effect of express contracts will be found,
V. R. v. Jetcett, 2 Corns., 147 ; Dormer's case, 5 Coke, 40, and ca. ci.
The case put by Littleton, .5 347, shows that assigns were not there
mentioned, Xichol v. N. Y. ic E. R R., 2 Kernan, 121, and Underbill
v. Sarat gaR. R., 20 Barb., 456, arose upon simple grants on condi-
tion that roads should be built, Sec, without agreements as to right
to re-enter by either the party or his assigns. In V. R. v. Hays the
court found a declaratory statute, " which precisely met the case,"
and expressly reserve the question as to the common law right,
p. 86.

4. The right to re-enter was therefore as much a contract right as
the right to the rent ; both were hereditaments, and the common law
interposed the same and all the objections to the assignment of the
covenants for the payment of the rent as to the assignment of the right
to re-enter. (19 N. Y. R., 103). If, therefore, the common law per-
mitted the legal assignment of the principal or rent, and of ihc cove-
nants, or permitted the covenants to be assignable in equity, giving
the assignee the right to prosecute thereon, in the name of the grantor
or his heirs, (19 N. Y. R., #5), there is no reason, and yet no authori-
ty, for saying that the incideut remedy by re-entry, so expressly given
to assigns, does not, at least in equity, go, like all securities, with the
rent, to be enforced like the other remedies, (Langdon v. Buel, 9
Wend.. 84). The right to enter for condition broken, may be
enforced by the heir of the father, wl>ere the heir on the part of the
mother is entitled to the land when recovered. Cruise Dig. Tit:
Estate on condition, § 53.

5. The right of re-entry has become, under the relief afforded in
equity, and now by statute practically a security for the rent. No
absolute forfeiture could result immediately from a breach of the con-
dition, nor from the actual entry and recovery of possession. 3 Dcnio,
337, 338 ; 2 R. S.. 506. § 34. 36; Strange, 900; 2 Sellon's Pra.. 127;
2 Salk, 297 ; 1 Paige. 414 ; 7 Paige, 352 ; 16 Vesey, 402 ; 18 Vesey,
56; 19 Vesey, 134: 2 Price. 200; 2 Mer., 459; II Met., 112.

Third Point. The plaintiff claims by devise, and could so take,
without regard to the statute of 1805, because this right of re-enty
was not a naked possibility, but was incident to. and coupled with, a
valuable vested estate of fee simple in the rent, (2 Kernan, 132), and
was devisable under the decisions, resulting in our State in the judicial
conclusions, that before the R. S , " descendible and devisable were
convertible terms." and that every possibility, except a naked possi-
bility not descendible to heirs. (Jackson v. Waldron, 13 Wend., 222 ;

35

Bayard . Lawrence, 7 Paige, 76 ; Comyn's Dig. " Devise " III; Jack-
son v. Varick, 7 Cowen, 239 and 2 Wend., 166; Pond v. Bergh, 10
Pai^e, 140).

Fourth Point. By the R. Statutes, the rent, and condition and right
of re-entry, are devisable.

1. The grantor, S. V. R., if he had no technical estate, present, or
expectant, in the land, had, at the common law, a present, vested,
descendible, or fee simple estate, in the rent, and in the condition, and
the right, on breach thereof, to re-enter and have the land again in
fee.

2. These estates or rights were both inheritable, and therefore
hereditaments. V. R. v. Hays, 19 N. Y., 77; V. R.v. Ball, ib., 100;
Jackson v. Topping, 1 Wend., 388; Hogeboom v. Hall, 24 Wend., 146,
149; Cruise's Dig. Tit. Condition. 53; 3 Kent's Com., 402; 2 Bl.
Com., 19, 20, 17, and n. 5 Wend's Ed. See also 1 R. S., 751, § 1 and
p. 754, §27, which make descendible real estate to include "every
estate, interest and right legal and equitable in lands, tenements and
hereditaments," except leasts for years, &c, which, but for tde excep-
tion, would have gone by descent under the sweeping intent and
words of the statute. For revisors' notes see 3 R. S., 2d Ed., p. 602.

Then by 2 R. S., 57, § 2, it is declared that " every estate and in-
terest in real property, descendible to heirs, may be devised."

This section, as the revisers say in their note (3 R. S, 2 Ed., p.
627), was "intended to comprehend every species of real property,
and terminate the dispute then pending, whether all interests which
descend to heirs can be devised." The dispute (11 Wend., 110),
seems, from the opinions subsequently given in the Court of Errors
(13 Wend., 178, 222). to have been considered as then already set-
tled at common law, in accordance with the principles of the statute.

3. It has therefore been decided in Hunter v. Hunter, 17 Barb., 86
that a fee simple rent, and the incident conditional right of re-entry
are devisable and assignable, and would pass by the words " all my
real estate in ," etc., in a grant (p, 76), and by words " all my lands
in," etc., in a will, where it was evident the testator thereby meant
the rents, etc., and had no other lands located to satisfy the devise
(p. 86, 87). Payn v. Beal, 4 Denio, 405, decides only: first, that
such rents were not embraced in the terms used in the statute con-
cerning sales on execution, because it was thought all the provisions
of that act taken together showed only property corporeal was inten-
ded; and second, that if the statute authorized it, the rent had not
in fact been sold properly (p. 413). The case of Harrington v. Budd,
5 Denio, 324. was decided upon the statute of wills of 1787 (p. 624),
and presented only a question of construction on a devise of " my two
hundred and fifty acres of land,'' etc., without anything to show an
intent to pass rents, and where the testator had lands located as the
will required.

Where the word hereditaments is used as it is in the devise in the
present case (fol. 61), every thing passes which may be inherited, cor-
poreal or incorporeal, real, personal and mixed. Coke Lit., 154, a ;
Com. Dig. Grant E. 1; V. R. v. Hays, 19 N. Y., 77, case and excep-
tions, fol. 37; V. R. v. Ball, ib., 100.

The dicta of elementary writers, that the benefit of a condition is
not devisable (2 Preston on Ab., 264), will not be found supported by

36

the authorities cited, and would apply only to naked conditions, and
not to rights of entry granted to assigns, and incident to a lent.

Fifth Point, The R. Statutes also declare this rent and condition,
and right of reentry, alienable.

J. " Every person capable of holding lands, (except idiots, persons
of unsound mind and infants), seized of, or en tilled to, any < state or
interest in lands, may alien such estate or interest at his pleasure,
with the effect, and subject to the restrictions and regulations provi-
ded bylaw.'' (1 R. S, 719, §10). "And ' lands,' as used in this
chapter, shall be construed as co-extensive in meaning with lands,
tenements and hereditaments.'" (Ibid p. 750, § 10).

There is no exception of any estate, or any class of hereditaments,
from this power of alienation. The M effect*' with which, and the
" restrictions and regulations " under which the right is to be exer-
cised, are " pr vided by law " in the various subsequent provisions of
the statute con erning estates, trusts, deeds, etc., of which §§ 14, 10,
144. 147 ad'ord examples.

2. To construe the clause, " subjept to the restrictions, &c," as
limiting the intent and elfect of the statute to the power as then ex-
isting would take away all the effect from the statute, be inconsis-
ten with its scope and purpose, and reduce it, in effect and substance,
to the absurd declaration that any person could alienate anything
wh ch ho could alienate,

3. In addition to the vested estate in the hereditaments alienable
by that term of the statute, the owner thereof may fairly be said to
be " entitled to'' the land, conditionally before, and absolutely after
breach; for "title" in its strictest sense, " is where a man hath
lawful cause of entry into lands, whereof another is seized, for which
he can have no action, as title of condition." (Coke Lit., 345 b, 348
a, and in Thos. Ed., vol. 2, p. 127). That lawful cause of entry may
be the right remaining after disseisin, or arising from a breach of
condition, or. as in the present case, a right expressly granted and
given by deed.

4. Section 35 (p. 725, 1 R. S.), concerning expectant estates, only
declares them" devisable and alienable in the same manner as estates
in possession," and was inserted to prevent the renewal, under the
statute above quoted, of the old question whether expectant estates
were devisable and alienable like estates in possession. The plain-
tiff's ri°ht or estate in the hereditaments is not expectant, but pres-
ent and vested.

5. The Revised Statutes thus declared all hereditaments transfera-
ble bv devise and alienation, but the old provisions concerning gran-
tees of reversions, &C, were properly embraced in substance in sec-
lions 23, 24, 25,, pages 747, 748, because they still remained neces-
sary to give to the assignees, when not named, the entry to take pro-
fits, &c, where that was given to the grantor, and the actions like
debt or assumpsit which the grantor had by the law only, and to give
actions by and against executors, in many cases for rents in arrear;
and they embraced, in a condensed lorm, the provisions ot several
other statutes, ai.d authorized distress (not given by the statutes 32d
Henry, 8), by executors where they would not otherwise have had it.

37

J R. L., 384, §§ 17, 18. Such reenactment was, therefore, proper,
although it was not, by reason of the other general provisions neces-
sary, if it had ever been, to make either of the hereditamens involved
in this case legally assignable.

6. The Revised Statutes not only thus declared all rights which
were of such a real nature as to be hereditaments assignable, but ab-
rogated all objections or reasons against the assignability of any of
them interposed by the law of maintenance, of which, " not a vestige
remains in this State." (Sedgwick v. Stanton. 14 N. Y. R„ 239 300,
301; Field v. Mayor, &c, 2 Seld., 179, 186, 253).

7. The right of alienation is an inherent, and the most valuable
incident of property or contract rights, and is the general rule, i hep
v. Touch, 118 Perk, 707, 708; Flow, 308; Meech v Stoner, 5 Smith,
29). The exceptions which arose from feudal tenures, and the fear
of maintenance, have been reduced, at least as to hereditaments, to
the restrictions now found in our statutes. It is absurd and unjust
to suppose that the Legislature has intended to deprive the owners of
rents — the most extensive and valuable class of hereditaments — and
no one else, of all power to recover, as well as all right to alienate
and devise their property.

8. If the case of Nicholl v. The N. Y. & Erie R. R. in this court,
aud the similar cases in the Supreme Court, should be held consis-
tent with the above cited provisions of the statutes (which, from an
examination of the opinions and printed arguments, do not appear to
have been suggested or considered in any of those cases); they were
all decided upon a very different right and condition, by which, the
parties left the rights of heirs and assignees, and the persons who
could reenter, to be fixed entirely by the law, and did not, as in our
case, give the condition, with its right of reentry to the assigns by
express grant.

Sixth Point. If the statute enabling grantees of reversions, rents,
&c., to have the remedies of their grantors was ever necessary as to
any of the plaintiff's remedies, it is still in full force, and is applica-
ble to leases in fee. 2 Jones v. Varick, 184; 1 R. S., 363; IRS
647, '8.

1, The law of 1805, chap. 98 (see its preamble), was only declara-
tory, and was passed " to remove all doubts respecting the true con-
struction of the act concerning grantees of reversions," &c, and en-
acted, that that act " shall be construed to extend,'' &c. It was a le-
gislative declaration that the court, in suggesting such doubts (Devi-
sees of V. R. v. Platner's Executors), had not construed that act cor-
rectly. The act of 1805 is still unrepealed, and declares in what
manner the former act, as to grantees, &c, also in full force, is to be
construed, as to all leases in fee made between 1805 and 1860. The
law of I860 does not direct, nor require the court, to construe the act
concerning grantees of reversions differently in regard to leases made
in 1804 than those made in 1807; ncr to construe it now differently
from the legislative construction given to it in 1805. Main v Davis,
32 Barb., 457, 458, and cases cited.

2. The cases of V. R. Executors v. Platner's Executors, 2d John-
son's Ca., 22, and Devisees of V. R. v. Pla/ner's Executors, ib., 24,

38

suggested doubts concerning the construction of the statute concern-
ing grantees, &c; but even the last of these cases, " assuming it to
have been correctly decided," (19 N. Y. R.. 81), which, as to the
doubt suggested, we can scarcely do in view of the law of 1805, was
an action by devisees against executors, for rent accrued after the
death of their testator, and is no authority that any statute is neces-
sary to sustain the action of covenant or re-entry by assignees, enti-
tled to the rent, against assigiu.es liable therefor, in pursuance of the
terms of the indenture, for rent accrued, while the parties claiming
and charged, stood in the privity or relation provided for by the inden-
ture. The case, at most, decides, as is respectfully submitted, that
the " express covenant of the parties upon which the right of action
was said to depend," (page 24.) made the " covenant descend with
the land, and equally with the rent, and. therefore, personal represen-
tatives could not. alter the death of the parties, and for rents accru-
ing after the death if bth, either maintain or be subject to an action.'*
(p. 26). The defendants were the only personal representatives in
that case, and the decision necessarily seems to be put on the ground
that the defendants, as executors, were not subject to an action; and
for the reason that the parties intended to, and by their agreement
d'd, make the covenant and its obligation binding, after the death of
both parties, only upon the party who, by reason of the profits and
ownership of the land while the rent accrued ought, from time to
time, to be liable: and that for such rents theie was no statute to sus-
tain actions between the r< presentatives of former parties, who had
died before the rent accrued, where one representative was a devisee,
and the other a. personal representative. The term executors, in the
contractus satisfied by making executors liable for rent in arrear at
the death of their testator, as is expressly decided in Quain's appeal,
(10 Harris Penn. R., 510, 511,) where it is held that such covenants
concerning a perpetual rent charge, do not make a liability continu-
ing forever upon the personalty and executors of the covenantor, be-
cause the parlies intended it as a covenant running with the land,
transmissible by the death of the parties, and as to subsequent rents,
ceasing as a personal covenant.

Seventh Point. 1. The plaintiffs' rights had all been acquired by de-
vise or assignments, made long before the act of 1860 was passed, and
while the law of 1805, whether necessary or not for any purpose, was
in full force. Such rights would not be destroyed, or affected, by an
absolute repeal of the law of 1805, (Palmer v. Conley, 2 Coins., 182),
much less by the enacting statute of 1860. which by words of only fu-
ture import, (Johnson v. Burrill, 2 Hill, 239), enacts that the law of
1805 shall not appjy, &c, and must be construed and applied by the
well settled rule a\s to enacting statutes, that the provisions of a
statute cannot have ,a retrospective effect unless declared to do so by
express words or positive enactment; Butler v. Palmer, 1 Hill, 334;
Main v. Green. 32 Barb. ,457; Dash v. Vankleek. 7 John., 477; Wood
v. Oakley. 11 Paige, 403; Berleyv Rampacher, 5 Duer., 1»3; I aimer
v. Conley, 2 Corns., 18 2; Bedford v. Shilling. 4 Serg. & R., 401;
Duffuld v. Smith, 3 Serg. & R., 590, 599, 599; Torrington v. Har-
greaves, 3 Moore and Pay, 143.

39

2. The right of re-entry had been exercised by commencement of
the action before the act of 1860 was passed, V. R. v. Ball, 19 N.
Y., 107.

Eighth Point. 1. Having thus acquired the rents and right of re-entry
the plaintiff is entitled to enforce them, under the only form of reme-
dy, the one civil action now given by the Code. Main v. Davis, 32
Barb., 4fc8 and ca. ci.; Trull v. Granger, 4 Selden., 119.

Ninth Point. 2. The Legislature having abolished the remedy by
distress provided for in the indenture, (V. R. v. Snyder, 3 Kernan,
300), the act of 1860, if effectual, as claimed by the appellants, to
take away all other remedies from the plaintiff, is unconstitutional
and void, because destructive of the contract. {Morse v. Gould, 1
Kernan, 287).

C. M. JENKINS,

Of Counsel.

In the Court of Appeals.

James S. Knowlson, Respondent , agt. Jacob White, Appellant.

Points for Appellant — Statement of Facts.

This action comes here upon the appeal of the defendant from the
judgment of the General Term, affirming judgment of the Circuit.
The trial was on demurrer to the complaint, that it did not state
facts sufficient to constitute a cause of action.

The action was brought for the breach of the covenants of Benja-
min Gifford, contained in a contract made by and between Stephen
Van Rensselaer and Gifford, April 26, 1796. That contract was
one of sale and assignment of lands by Van Rensselaer to Gifford,
and a covenant to pay therefor by G fford to Van Rensselaer.

The defendant was claimed to be liable on the ground that he sub-
sequently became the vendee of the same estate in the same premises,
which had been sold and conveyed by Van Rensselaer to Gifford.

Points.

1. Unless the covenant sued upon was one, when made, which
runs with the land as a burden so as to bind the assignees of the
covenantor, this judgment can not be sustained. The first thing to
be done is to ascertain the rule as to covenants running with the
land as a burden.

First. The covenant must be contained in, or be a part of, a grant
or contract, which created or originated an estate or interest in lands.

There are two classes "f contracts executed, used in the commerce
of lands between individuals, namely, those which create estates or
interests, and those which assign or transfer estates or interests be-
fore created. Blackstone classifies them as I, original or primary,
and 2. derivative or secondary. (2 Bl. Cora., 309, 310). Every
deed or contract of conveyance of lands, either creates an estate or
interest, or assigns an estate or interest before created. To run
with the land as a burden, the covenant must be embraced in a con-
tract of the first class.

40

Covenants between lessor and lessee contained in the deed of lease
may run with both the reversion on the one side and with the estate
demised on the other. This is one of the familiar rules of the com-
mon law, which has never been questioned. 2 Piatt on leases, page
401.

Second. But it is not enough to make a covenant run with the
land, that it is contained in a lease, and made between lessor and
lessee. Even in such a connection, " although the covenant be for
him and his assigns, yet if the thing to be done be merely collateral
to the land, and doth not touch or concern the thing demised in any
sort, there the assignee shall not be charged." Second resolut on of
Spencer's Case. See 1 Smith's Leading Cases, page 23.

The principle which underlies this rule is obvious, and founded in
the character of the rights which individuals may have in lands.
There are two fundamental rub s pecul'ar to real property:

(1.) The original and ultimate right of property in all the lands of
the state is in the state. (1 R. S., 718, § 1. Constitution of 1840,
art. 1, § 11.) Both the statute and the constitution were simply de-
claratory of that principle as a fixed and umlterable rule of the com-
mon law. Williams on Real Property, p. 16.

This is a right which " can never pass away from the people by
grant or otherwise, because it is the original and ultimate ownership
of the political sovereign, and not the title or estate of an individual."
The Trinity Church Case, 22 N. Y., 47.

(2.; The second fundamental rule is that individuals can only hold
estates in lands at most. That is they can have nothing but a right
of possession. See Williams on Real Propeity, p. 16. Smith's Land-
lord and Tenant, p. 2.

And, " the only way that an individual can acquire a right in real
estate, is by grant, or by an adverse possession of twenty years under
claim of title, in which case the court presumes a grant." Curtis v.
Kesler, 14 Barb., 521. Post v. Pearsall, 22 Wend., 444.

In other words, individual rights in lands rest upon a contract exe-
cuted which bestows the right; and they can exist no longer than the
obligations of that contract continue. It follows, as a matter of
course, that whatever covenants or agreements are contained in such
a contract, touching or concerning the estate or interest granted, are
a part of that estate or interest, and can not be separated from it.
An assignment of the estate or interest is nothing more than the as-
signment of the contract upon which it rests, and the assignee be-
comes a party to the contract. So long as he remains assignee of the
contract, he is entitled to the benefits and subject to the burdens of
the covenants and conditions therein contained, so far as they touch
or concern the estate. A party in possession of lands, who denies
that he is in by any contract, either with the state or with an indi-
vidual, virtually admits himself to be a trespasser.

A lease is a contract executed which gives or grants the right of
possession and prescribes the terms and conditions of that possession.
There is a good reason why a party who comes to such right by as-
signment, should fulfill the terms and conditions imposed by the con-
tract.

41

So far, there is no dispute about the rule as to when and what cov-
enants run with the land; and there are few, if any, of the rules of
the common law, the r< ason or principle of whicli is more obvious.

Third. — As to grants of interests in lands which fall short of being
estates, and which contain covenants concerning tbe interest granted,
there has been some dispute whether in such cases the covenants ran
with the land. It has, however, been held that where some interest
in the land is granted and the estate is left in the grantor, and the
grant is made to a party as the owner of an estate in other lands, and.
there is a covenant touching or concerning the interest granted, made
at the same time with the grant, such a covenant will run with the
land, so as to bind the assignee of the covenantor. This rule em-
braces grants of water privileges, right of way and other easements.
(Holmer v. Buckley, 1 Ab. Eq., 27, > is an early case of that kind; and
Morse v. Aldrich, ( 19 Pick., 454,) a modern case of the same character.
For an elaborate discussion of this subject, see also Weyman's Ex'rs.
v. Ringold, (1 Bradford's Rep., 54-5.)

We submit that tbe principle of the rule is the same in both cases.
This will appear evident when we consider what an easement is, and
how it is constituted.

An easement is " a privilege without profit, which the owner of a
neighboring tenement hath of another, existing in respect of their
several tenements, by which the servient owner is obliged to suffer' or
not to do something on his own land for the advantage of the domin-
ant owner. (Gale and Whateley's Law of Easements, p, 5.) The
chief requisites of an casement are : 1. It must bo imposed upon cor-
poreal real property. 2. It must confer no right to a participation in
the profits arising from such property. 3. It must be imposed for
the benefit of corporeal property; and, 4. There must be two dis-
tinct tenements, the dominant, to which the right belongs, and the
servient, upon which the obligation rests. (2 Bouvier's Inst., 170-1,
Nos. 1601 and 1605. Wolfe v. Frost, 4 Sand. Ch. Rep., 89.)

In other words, to constitute an easement, there must be two dif-
ferent parcels of land belonging to different individuals respectively.
The grant of the easement becomes appurtenant to the two estates,
as a burden or servitude to the one and as a benefit to the other.

Such a right cannot standalone, and does not reach to the dignity
of an estate, because it does not carry with it the exclusive right of
possession, but only the use of the lands for a limited purpose; and
does not therefore create the relations of landlord and tenant. If it
be to a person who has no estate, or to one who has, but it is not
annexed to his estate; it is not an easement but a mere license.
2 Bouvier's Inst., 17 J. Rathbone v. McConnell, 21 N. Y., 469.

An easement, like an estate, always presupposes a grant. 14 Barb,,
521; 22 Wend., 444.

The chief difference between a "grant which creates an estate and a
grant which creates an easement, is in the quality of the interest cre-
ated ; the one being an exclusive right of possession and the other
not. Both are equally interests in lands and both depend equally
upon contracts executed, which bestow the right. And, it is equally
true as to both, that no one can make himself out to be the owner of

42

the right except by making out that he is the party of the second part
to the contract which created and sustains the right, either as the
grantee or the assignee of the grantee ; and as a pai ty, there is good
reason why he should fulfill the contract. Upon that principle, it was
held in Morse v. AUrich. 19 Pick., 454, that a similar privity exists
between the grantor and grantee, where a grant is made of any subor-
dinate interest in land, as where there is a grant of an estate. Iq
either case, the residue of the estate, or the reversion, being left in
the giantor, the estate or interest granted is held of him, or of his
grantee of that reversion.

II. Covenants contained in the second class of conveyances, namely,
in deeds of sale and assignment, do not run with the land as a
burden.

First. As a question of authority, there is no reported case which
has ever held that the covenant of an assignee to his assignor can run
with the land as a burden upon the assignees of the covenantor, No
elementary writer upon the subject has ever put forth such a rule;
nor is there a reported case, where counsel have contended for such a
doctrine. A contrary doctrine has been very generally assumed. See
notes to Spencer's Case ; 1 Smith's Leading Cases, p. 22, et seq. ; Kep-
pel v. Bailey. 2 Mylne & Keene, 517; Hurd v. Curtis, 19 Pick., 463;
Weyman's Exrs. v. Ringold, 1 Bradford's Rep., 53, and authorities
cited; Vyvyan v. Arthur, 1 Barn. Sc Cres., 410; Webb v. Russell, 3
Term Rep., 393, and authorities generally.

Second. As a question of principle, such a doctrine is absurd. A
tenant, on assigning his tenancy, creates no estate and grants no right;
he only transfers a preexisting right. His assignee takes and holds
under the same contract as the assignor before held. The assignor
ceases to be the party of the second part to the grant or lease; and
his assignee succeeds him as the party to that contract.

The assignor cannot change the terms or conditions under which
the lands are held; nor can he impose new or additional terms under
which the lands are to be thereafter held of himself, or of his heirs or
assigns. To hold that he could, would subvert the whole system of
real property. Those who own estates, but have tenants under them,
would be dependant upon the favor of their tenants; for, should the
tenant assign, he would give his landlord a new tenant: but ha
might, at the same time, place himself between the landlord and his
tenant, practically, if not nominally, as an intermediate lord ; and
every subsequent assignee could do the same, and so on, without
limit, until the proprietor of Ihe land would be practically so far re-
moved from his tenant by the intermediate assignors, that he could
not collect his rent, while the intermediate assignors would have
thrown off all liabilities, either to the landlord or to the tenant, the
moment they made their respective assignments. It is impossible to
conceive of a doctrine more destructive of the rights of property, or
more threatening to the foundations of society, than such an one
would present.

III. The contract between Van Rensselaer and Gifford, containing
the covenant sued upon, was an assignment. This must be regarded
as a settled question. Indeed, it is not denied by the plaintiff, but

43

it is so set forth in his complaint. But independent of the form of
the contract, or of the intention of the parties, our statute concerning
tenures, which was in force when the contract was made (1796), fixed
it as an alienation or assignment. That statute was both an ena-
bling and a disabling act. It enabled every tenant in fee to sell and
assign his estate at pleasure. It disabled him from leasing in fee,
and it disabled him from imposing rents and services upon the estate
transferred. The ability to assign was attended with the proviso,
that the purchaser should hold the lands or tenements of the same
fee, and by the same services and customs by which the person mak-
ing such alienation before held the same lands or tenements. 1 R.
L., 70, § I.

That section was but the re-enactment of the English act of 1290,
known as the statute quia emptores. It did more than prohibit; it
disabled a tenant in fee from leasing in fee.

The effect of the English statute is well stated in Williams on Real
Property, page 95, as follows:

"The giver or seller of an estate in fee simple is then himself but
a tenant, with liberty of putting another in his own place. He may
have under him a tenant for years, or a tenant for life, or even a
tenant in tail, but he cannot now, by any kind of conveyance, place
under himself a tenant of an estate in fee simple. The statute of quia
emptores now forbids any one from making himself <he lord of such
an estate; all he can do is to transfer his own tenancy; and the pur-
chaser of an estate in fee simple must hold his estate of the same
chief lord of the fee as the seller held before him."

The effect of the statute is stated substantially in the same way by
Smith in his work upon Landlord and Tenant, pages 5 and 89; and
all the writers upon the subject have taken the same view.

Our statute has received the same construction by this court, in
both De Peyster v. Michael (2 Selden, 467), and Van Rensselaer v.
Hayes (19 N. Y.. 73;.

In the first cited case, this court said of our statutes: " They put
an end to nil feudal tenures between one citizen and another, and substituted
in its plaee a tenure between each landholder and the people in their sovereign
capacity.'" 2, Selden, 504-5.

In the othi r case it was declared that " The laic forbidding the cre-
ating of new tenants by means of subinfeudation xcas always the law of the
colony, and that it was the law of this state, as well before as after the pass-
age of our act concerning treasures in 1737.'' 19 N. Y., 74.

And again, in the same case: " The effect of this important enact-
ment was, that — henceforth no new tenure of lands which had already been
granted by the sovereign could be created. Ecery subsequent malienation
placed the feoffee in the same feudal relation which his feoffor before occupied;
that is, be held of the same superior lord by the same services, and not of his
feoffor:'

In both cases this court expressly declared that our laws upon this
subject, at least as they existed previous to 1805, were precisely like
the laws of England. 2 Selden, 504-5; 19 N. Y., 76.

The case before the court then stands in this way. Van Rensse-
laer owned an estate in fee, and sold and transferred it to Gifford. The

44

title of Van Rensselaer necessarily presupposed a grant from the
state, of which he was the original grantee, or the assignee of the
original party. This court must, therefore, regard it as a part of
this case, that there was a contract executed, older than the one
sued upon, of which the state was a party of the first part, and Van
Rensselaer before his conveyance to Gifford, th • party of the second
part; and after his conveyance, that Gifford was the party of the
second part thereto; and by a transfer from Gifford that the defen-
dant succeeded Gifford in the contract with the state. In other
words. Van Rensselaer, Gifford and the defendant have successively
been the tenants of the state, of the same estate.

So far this court has already decided in the cases before cited. The
defendant was never, therefore, a party to the contract sued upon
and cannot be held liable thereupon, without holding that the distinc
tion between a lease and an assignment, which has been a marked fea
ture of the common law from its very origin, is and was a fallacy
and without holding that the statute quia emptore< was of no effect
notwithstanding it had been held otherwise for six hundred years
or else, that all those distinctions and effects were wiped out by the
act of 1805.

This distinction between a lease and an assignment, has been not only
recognized by the courts and by jurists generally, but legislatures
and statesmen have founded some of their most important acts upon
it. In the constitutional convention of 1846, a provision was made
as to agricultural lands, that there should be no lease or grant reserv-
ing rent or service of any kind for a longer period than 12 years.
Had the legal minds which gave direction to that convention sup-
posed it possible that rent or service could be legally imposed between
vendee and vendor, or assignee and assignor, on sale or assignment,
it is reasonable to suppose that they would have enlarged the terms
of that provision so as to embrace sales and assignments.

The point they were seeking to attain, was the freedom of agricul-
tural lands from servitude of any kind. But notwithstanding the
restriction they imposed against grants or leases, if this judgment can
be lawfully sustained, that is, if such servitude can be just as effectu-
ally imposed in connection with deeds of sale and assignment, they
grossly failed to reach the end they aimed at by the constitutional
provision. The purchaser of lands might covenant to labor every
day in the year, or make any other lawful covenant, and if such cov-
enant attached to the lands and fell upon his assigns because they
might be named, every foot of land in the state might, and, in time
would, be. covered with oppressive and degrading obligations which
would be constantly increasing.

IV. But even supposing the distinction between a lease and an
assignment open to question, as a general rule, there would still be
no doubt in a case like this, coming as it does within our statute of
tenures of 1787.

Firt. The statute not only made every conveyance of a fee by an
individual, an assignment of the fee, notwithstanding the parties may
have expressed the intention, by the language of the instrument, that
it should be a lease, but it also expressly provided that the purchaser
should hold " by the same services and customs'' as his vendor be-

45

fore held the same lands or tenements. This language was clearly
intended to disable the vendor from imposing new or additional ser-
vices and customs to be incident to the holding. It was more than a
prohibition, it was a disability to impose new services or conditions.

Second. Tho ultimate purpose of the statute quia emptores, was to
prevent estates in fee from bei oming burdened with rents and servi-
ces or any other imposition. The evil which the statute was designed
to remedy, was the accumulated imposition of such burdens upon the
lands by successive leases in fee.

The system of subfeuds was carried to so great a length that it
broke down of its own weight. All the parties connected with the
lands suffered from excess of the burdens imposed over and above the
annual productions of the land. 2 Bl. Com., 91.

They first tried the remedy of partial prohibition upon leases in
fee. That failed. Then came the total disability provision of the
statute quia emptores. This has been regarded and treated as a per-
fect remedy in England since its enactment in 1290. Its entire suc-
. cess as a remedy has never even been questioned.

Third. This court expressed theopihion in Van Rensselaer v. Hays,
(19 N. Y., 73). that the statute quia emptores, was introduced into
this state under the colonial government, and has ever been here con-
temporaneous with the common law; that ihe statute of tenures was
only declaratory of tie law as it before exi-ted. 19 N. Y., 74.

It should therefore receive the same construction here as in Eng-
land. The rule upon this subject was stated Ch. J. Marshall in
Cathcart v. Robinson, (5 Peters, 280), as follows:

" The rule which has been uniformly observed by tliis court in
construing statutes, is, to adopt the construction made by the courts
of the country by whose legislature the statute was enacted. The
received construction in England at the time they are admitted to
operate in this country, indeed to the time of our s< paration from the
British empire, may very properly be considered as accompanying the
statutes themselves and forming an integral part of them.''

It would be somewhat unreasonable to presume that our legisla-
ture, in the declaratory act,. intended differently from the English
act, as they expressed no different intention in the language which
they adopted.

Fourth. But aside from the fact that the legislature adopted the
English statute without any material change, they gave further evi-
dence of their intention, by the last section of the same act, which
was new and original. By that section, they provided so that grants
of an estate in fee made by the state were to be allodial and not feu-
dal; and to be held discharged of all rents and services whatsoever.
The intention of this section is plain. The state was thus prevented,
not from making grants or leases in fee, but from attaching to such
estates any rents or services as conditions or burdens upon the es-
tates. By the first section, individuals were disabled from imposing
burdens upon estates in fee, but this disability did not embrace the
state. Hence the last section was provided in order to restrain the
estate in that respect. There was nothing in either section to re-
strain the state or any individual from making leases for life or for

46

years, and imposing thereupon rents and services. There was no-
thing to prevent the state from making grants in fee; she was only
prevented from imposing rents and services to run with the land.
She could take the personal obligation of the grantee and enforce it,
but could not make that personal obligation a condition or burden
upon the land.

It is apparent, therefore, from these two sections, that the policy of
the legislature of 1787, was to preserve estates in fee, in all cases,
free from the imposition of rents and services to grow due either to
the state or to individuals. The first section secured against rents or
services to be reserved to individuals, on estates in fee, and the last
against rents or services to be reserved to the state upon granting
lands in fee. Neither of these sections had any effect upon leases for
life or years.

The four intermediate sections had no bearing upon either the first
or the last section. They were simply re-enactments of the English
act of 12 Charles II, ch. 24. Sections two and three abolished mili-
tary tenures with all their incidents. Section lour declared how,
military tenures should thereafter be regarded; and the fifth section
saved rents and services certain, if any existed in connection with the
military tenures abolished. Such rents and services were consistent
with soccage tenure, and therefore they were to be saved.

The revisers expressed the opinion that no military tenures ever
existed here; and that, consequently, those sections were unnecessary,
and of course without effect. No one has ever questioned that opin-
ion; and our laws have been declared to be similar to the laws of
England upon this subject, at least before the act of 1805 2 Selden,
504-5 ; N. Y., 76, before cited.

V. It has been urged, by way of precedent or argument, that the
courts of this state have always assumed that the assignees of the
grantee were liable upon such covenants.

The answer to this is so apparent, that it is remarkable (hat such
an argument was ever made by any one. So far as there have been
such assumptions by the courts, or by the lawyers, they have fol-
lowed from the ulterior assumptions that the statute quia emptores
was not in force here; and that, consequently, the parties claiming
rents were feudal lords, and the parties of whom they claimed, feudal
or manor tenants, in the true and lejral sense of those words. The
one were assumed to be the proprietors or owners of the soil, a: d the
other merely their tenants. With such ulterior assumptions at the
foundation, the assumption that the covenants ran with the land, so
as to fall as a burden upon the assigns of the covenantors, was a matter
of course ; and such have been the ulterior assumptions in all the
cases relied upon in that argument. See Jackson v. Schutzs, 18
Johns, 179. Watts v. Coffin, 11 Johns, 495. Lush v. Dru-e, 4
Wend. 313. Van Rensdaerv. Bradley, 3 Denio, 135. Van Rens-
selaer v. Jone<, 2 Barb. 643. Van Rensselaer v. Gallup 5 Denio. 460.

Upon such assumptions alone, the class of interests which has
sought distinction under the name feudal or manorial has been sus-
tained, so far as it has received countenance from any source. Now
when this court decided that the statute quia emplorcs was in force
here and always had been in force, they pronounced those ulterior

47

assumptions to be false and unfounded. This destroyed the founda-
tion ot the cases relied upon as authority to make the covenants run
with the land. Those cases afford no authority for the inference that
it is immaterial whether the statute was or was not in force; whether
the instrument sued upon was a lease or an assignment; whether the
claimant of rent owned the land or not; whether the contestant was
the tenant in fee of the estate or of the claimant; and those cases are,
therefore, no authority in favor of this judgment, for it can not be
sustained, without holding all those points, to be immaterial.

As to the statute of 1805, and other points, apply the points pre-
sented lo this court at the January term, 1863, in the case of Van
Rensselaer v. Bonesteel. A. BINGHAM, of Counsel.

In the Court of Appeals.

Jamfs S. Knowlson, Respondent, agt. Jacob White, Appellant.

James S. Knowlson. Respondent, agt. Peter A. Allendorph Ippel-

lant.
•James S. Knowlson, Respondent, agf. Lewis Allendorph, Appellant.

Points for Respondents.

These three cases all arise on demurrer to complaints in covenant
for rent on leases in fee made by the late Stephen Van Rensselaer.

The questions involved are precisely the same with those
presented in the case of Van Rensselaer v. Bonesteel, No. 46 on
the annual calendar, which was argued on the 15th of January, 1863.

That case being now pending, it is supposed that a new argument
will not be heard on the same questions, and the points then submit-
ted in behalf of the respondent are referred to as equally applicable
to these appeals. JOHN K. PORTER,

Counsel for Respondent.

In Court of Appeals.
Stephen Van Rensselaer agt. John Read.
Selden, J. A brief statement of the principles which appear to be
definitely settled, touching the rights and liabilities of parties under
instruments of the nature of that which forms the foundation of the
present action, by enabling us to see distinctly what remains undeter-
mined, will be of service in the examination ot the questions now
presented for decision. The following may be regarded as principles
thus settled.

1. That since the passing of the act of 1787, " concerning tenures '•
(however it may have been before that time) it has not been possible
to create any new tenures, in this State, upon conveyances in fee.
Such conveyances operate as assignments and not as leases, whatever
name mavbe given to them, and leave neither any reversion or possi-
bility of reverter in the grantor, (De Peysterv. Michael, 6 N. Y. 467;
Van Rensselaer v. Hays, 19 Id., 68).

2. That an annual rent, issuing out of the land reserved in such
conveyance, to the grantor, his heirs and assigns, forever, with a
covenant on the part of the grantee for its payment, together with a
right of distress and re-entery in case of non-payment, although not a

48

rent-service for want of a reversion in the grantor, is a fee farm-rent,
or, if not strictly such (Bradly on Distress, 34; Harg n. 3, on Co. Lit-
tle, 143, b. 19 N. V.. 70) it is a rent-charge in lee, and equivalent to
such rent-charge granted by the owner of lands in fee, (Little, § 217;
Co. Little, 1 13 b; Gilbert on Rents, 1(J. 17. 39; 2 John., cases 26; 2
Cow.. 659; 13 N. Y. 299; 19 Id.. 77. 78, 100.

3. That such rent is a hereditament and descends, in the absence
of other disposition, to the heirs of the party to whom it is reserved,
and is devisable and assignable in all respects like other incorporeal
hereditaments, 2 Sanders on Uses and Trusts, 32, 5th ed.. Lond.,
1844; Shep. Touch., 238; Lade v. Baker, 2 Ventris, 149. 260, 266;
Maunds' case, 7 Co., 286; 2 John. Cases 17, 24; 12 X. Y., 132;
19 Id.. 68; Id., 100.

4. The right to distrain, and the right to maintain actions of annu-
ity, and assize of novel disseisin, at common law, followed the owner-
ship of the rent, when it passed from the person to whom it was
reserved, whether it passed by descent or assignment. (Vechte v.
Brown, 8 Paige, 212; Bradly on Distresses, 51, 52; Adams on Dis-
tresses, 36; Maunds' case, 7 Co., 28 b.; Co. Little, 144, b. and Harg,
Note I ; Roscoe on Real Actions, 65; Gilbert on Rents, 83, 100 ; Lit-
tle, §§ 233, 235.

Attornment by the tenant was necessary to entitle the assignee to
distrain or to maintain annuity and actual seizen of the rent by pay-
ment of a part to authorize an action of assize ; but that necessity, at
least so far as related to attornment, was removed in England by the
statute, 4 Anne, ch. 16. 59, which was early re-enacted in substance,
and has since been kept in force in this State, (2 Sanders on Uses and
Trusts. 40 to 46; Butler's Note. No. 272 to Co. Little, tit. 3, 309,
b.; Gilbert on Rents, 32, 33, 51, 52; Doug., 624; Strange, 108;
Yelv., 135; 2 Greenl. Stat., 115; 1 R. L., 525, § 25; 1 R. S. 739, §
146).

5. That the covenants entered into by the grantee of the lands in
behalf of himself, his heirs and assigns, are covenants real, which
run with the land, and are binding upon the heirs and assigns of the
covenantor successively, as to all breaches of such covenants which
occur during their respective ownership of the lands.

Van Rensselaer v. Hays, 19 N. Y., 68 ; Piatt on Covenants, 493,
494.

6. That a devise or assignment of the rent gives to the devisee or
assignee at least the equitable interest in the rent and the right to
equitable remedies for its recovery, without any aid from the act of
1805, partially repealed by the act, ch. 396, of the laws of 1860, (19
N. Y!, 85, 86.)

7. That the personal representatives of the original grantor, to
whom the rent was reserved, can maintain no action on the covenant,
for the payment of rent, on account of any default in payment occur-
ring after the death of such grantor, (The Executors of Van Rensselaer
v. The Executors of Platner, 2 John, cases, 19.

8. That devisee or assignee of the rent, can maintain no action
against the personal representatives of the original covenantor, on ac-
count of any detault in payment of rent, occurring alter the death of
such covenantor. (The Devisees of Van Rensselaer v. The Executors
of Plainer, 2 John, cases, 24.

49

9. That the terms of the devise to the plaintiff are sufficient to vest
in him the right to the rent in question.

Several cases have been decided by this court, in which the right of
the present plaint ill', under the devise in question, to rents of the
character of thosiJ here claimed, has been sustained, and although
the subject of the sufficiency of the devise to vest the title to the rents
in the devisee, does not appear to have been specially noticed by the
court, it is hardly possible that it could have passed unobserved, and
the decisions in those cases, if not conclusive, raise a strong presump-
tion in the plaintiff's favor upon this point. (Van Rensselaer v. Sny-
der, 13 N. Y., 299; The Same v. Hays, 19. 25, 68; The Same v. Ball.
Id. 100. But regarding the question as an open one. I entertain no
doubt that the language of the devise is broad enough to embrace the
rents.

In the case of Hunter v. Hunter, (17 Barb.. 28. 8G), such rents
were held to piss by the words " all my lands in the county of
Greene."

Whether perpetual rent charges are properly denominated lands or
not, they certainly come within the terms, " lands, tenements, and
hereditaments'' used in the present devise. Lord Coke says (Co.
Litt., b. a). " Tenements is a large word to pass not only lands and
other inheritances which are holdeu, but also offices, rents, commons,
profis apprend'er, out ol lands, and the like wherein a man hath any
frank tenement and whereof he is seized, id de libera tenemento. But
hereditament is the largest word of all in that kind, for whatsoever
may he inherited is a hereditament, be it corporeal or incorporeal
real, personal or mixed,'- (2 Roll, Ab.. 57; Rich v. Sanders, Styles.
261, 278) That rent-charges in perpe'uity are hereditaments has
never been questioned. (2 John., cases 21, 26; Jemmott v. Cooley, 1
Lev., 170; S. C. 1 Saund., 112).

From the foregoing statement, it will be seen that the reservation
of the rent in question is valid; that the covenant for its payment is
a covenant real, running with the land, binding the defendant person-
ally for its payment, (his ownership of the lands, when it accrued
being undisputed ) and that the plaintilf, by virtue of the devise from
his father, was the owner of the rent, when it became due, having at
common law the right to distrain for it. or to maintain an action of
annuity for its collection. The further question is now presented,
whether the devisee or assignee of the rent, may either at common
law, or by virtue of any statute now in force, maintain an action on
the covenants fur the rent against the grantor or assignee of the cove-
nantor.

The burden of the covenant, as we have seen, runs with the land,
against the person who is in equity bound to pay the rent; does the
benefd of such covenant run with the rent, in favor of the person who
is in equity entitled to receive it? If the assignee o: the rent cannot
avail himself of the covenant for its payment, one olrcct of the par-
ties to the covenant will fail. They covenanted fur acts to be per-
formed by and to each others, heirs and assigns annually forever, in
regard to this land. These acts were designed to be performed di-
rectly between such heirs and assigns, without the necessity of main-
taining the expensive and cumbrous machinery of perpetual personal
4

a

50

representatives oi the parties. The decisions which have been re-
ferred to. show that on the part of the person bound to pay the rent,
no such machinery is necessary; that the law deals directly with
him, as holding the laml charged with (he rent, and therefore in law
as well as in equity, bound to pay it. That the lcga4 and the equita-
ble duties accompany each other, both following the title to the land
into whatever hands it may go. the assignee taking the place of the
covenantor, and being bound by his covenants so long as he remains
such assignee, and no longer. (Piatt on con.. -196). The same de-
cisions show, also, that on the other side the equitable right to re-
ceiue the rent pisses to the assignee in the same manner as the equi-
table obligation to pay it follows the title to the laud. It is claimed
on the part of the defendant that the legal right of action on the
covenant does not pass with the rent to the assignee, but is either ex-
tinguished by the assignment, or remains in the original covenantee
or his persona] representatives. The case of Hays, ab ve cited, shows
that the covenant is not extinguished by the assignments ; and no
adequate reason can be given for d< Dying to the assignee of the
rent the right to maintain an action upon it. The only reason which
has been assigned, in the authorities to which we- have been referred,
for such denial is that upon which the common* law prohibited the
assignment of all choses in action the prcvension of maintenance.
But the covenant for the payment of rent is not within this rule.

It is not a covenant in trross or a mere chose in action, (Stevenson v.
Lombard, 2 East, 576), but is a part of the security for the payment
of the rent. The rent itself being assignable, the covenant for its
payment should, it would seem, be assignable, to the same extent, for
the reason given by ch. , Baron Gilbert why a nomine pcena, when pro-
vided for in the lease, passes to the assignee of the rent, viz: " be-
cause whosoever has a right to the rent ought to have all that secu-
rity for the payment of it which was taken on the original creation
of it." (Giibert on Rents, 143, Cro. Eliz., 895, 7 Peters, 6u5, 6).
Rent due is a mere chose in action, and not assignable, but it is
otherwise of rent not due (Bradley on Distresses, 52. Adams on
Distresses, 36). The covenant for its payment should, therefore, be
assignable before breach, but not after. It was so held in Demai est
vs. Willard, (8 Cow., 206, see T. Raymond. 200.) liven if the law-
was clearly settled in England that such covenants were not assigna-
ble, I should be unwilling to follow that rule unless it had been al-
ready recognized by our courts, especially since we have abrogated
the doctrine of maintenance, upon which alone it rested. It is. how-
ever, far from being settled in England, and no precedents in its sup-
port in this state have been brought to the notice of the court; on
the contrary, there are several decisions leading to the opposite con-
clusion.

In the case of Hays the right of the assignee to maintain an action
on the covenant for the payment of rent in a lease or indenture, like
the present w;ts sustained; but the decision was placed upon the ef-
fect of the acl of 1805, which was held to extend to the assignees of
rents reserved in conveyances in fee, the same remedies by action for
the non-performance ot covenants against the grantees and their as-

51

signs, which were secured to the assignees of reversion by ch. 7 of
the laws of 1788.

Since that case was decided, and prior to the commencement of the
present action, the legislature, by ch. 396 of the laws 1860, has de-
clared that the act of 1805, and its reenactments, should not apply
to deeds of conveyance in fee made before the 9th day of April, 1805.
The pi. lintitf's cause of action was complete under the act of 1805,
prior to the passing of the act of 1860, and the constitutionality of
the latler act. as applied to the present action, is therefore denied.
The act of 1805 has been held to affect the remedy only, and not the
contract, and for that reason not liable to this objection, when urged
by the assignees of the covenantor (19 N. Y., 68.) The objection to
its repeal would nevertheless be effectual in favor of the plaintiff, if
such repeal would deprive him of all substantial remedy for the re-
cover} of the rent, but not otherwise. As I am satisfied that his
remedy was not affected by the repeal, this question becomes imma-
terial.

It is insisted on the part of the plaintiff that the act of 1788, as re-
enacted in the Revised Statutes (vol. 1, p. 749, §§ 23, 24), without
the declaratory act of 1805, (id. §25), is broad enough to embrace
the present case, and to give the assignee of the rent a right of action
on the covenant fur its payment. I think the act in its present form
might fairly receive that construction, but its title as originally pass-
ed, viz : " An act to enable grantees of reversions to take advantage
of the conditions to be performed by lessees, would create a doubt
whether the general expressions contained in the act were not intend-
ed to be limited to grantees or assignees of reversions, though such
limitation is not expressed. So far as the statute has received the
attention of judges, the opinion appears to have been entertained that
its benefits were confined to parties having the reversion of the lands
to which the conditions or covenants related, and such is the estab-
lished construction of the statute (32 Hen., 8) ch., 34, after which
our statute was modelled. Tluj solution of the present question,
therefore, depends upon the common law, or upon recent statutes re-
lating to the prosecution of actions. The first ground upon which
the judgment in this case is sought to be sustained, without the aid
of the acts of 17SS and 1805, is that the covenant for the payment of
the rent, is not a merely personal covenant, but a covenant real, the
benefits of which passed to the plaintiff on the devise of the rent to
him. This question has been much discussed by judges and elemen-
tary writers, and cannot be regarded as entirely at rest on either side
of the Atlantic. I shall not attempt to review the cases, as very lit-
tle could be added to what appears in the English and American notes
to Spencer's case (1. Smith's Leading Cases. 22), and in the recent
treatise of Mr. Sugden on Vendors and Purchasers.

Mr. Sugden says (vol. 2, p. 4*2) "the rent-charge is an incorpo-
real hereditament, and issues out ol the land, and the land is bound
by it; the covenant therefore will run with the rent in the hands of
an assignee ; the nature of the subject, which savors of the reality,
altogether distinguishes the case lrom a matter merely personal."
Again, at page 492. after reviewing the English cases bearing upon

52

the question, he «;ivs " upon the whole, it is submitted thai i ovenants
like those in Brewster v. Kidgell,'' which was the case of a rent*
charge in fee with a covenant li r its payment, free from taxes,"* ughl
to be held to run in both directh ns, with the rent or interest carved
out or charged up. ui it " (the land) "in the hands of the assignee so
as to enable him to sue up n them, with the land itself in the hands
of tin- assignee so as to rendei him liable to hi- sued upon it."

This conclusii n is confirmed by the decision of the Supreme Court
of the United *tates. in the easi I N tt v. Lunt's, Adminutra'ors,
(7 Peters., 596), in which the assignee i fa rent-charge in fee, created
by an indenture in 11 material respects similar to that under which
the plaintiff claims, was entitled to maintain an action of covenant
tor the rent, against the administrator of the covenantor. The differ-
ence of opinion i n this question among judges and elementary writers
has, I think, mainly arisen from a misunderstanding by some of them
of the remarks of Lord Holt in the case of Brewster v. Kidgell, as
was shown in the opinion of Judge Denio. in the case of Van Rensse-
laer v. Hays, (supra). In that opinion the learned judge, alter refer-
ring to the passages above quoted from the treatise of Mr. Sugden,
says, "the great learning of the author, afterwards as Lord Leonards,
Lord Chancellor of England, would incline me to adopt his conclu-
sions, were it not that we have a precedent the other way in this
State." referring to the case of The Devisees of Van Rensselaer v.
The Executors of Platner. (2 John. Cases. 2b). I do not understand
the decision in that case as in conflict with the opinion of Mr. Sugden,
on the contrary, when considered in connection with the case of The
Executors of Van Rensselaer v. The Executors of Platner, decided at
the same time, it appears to me very strongly to confirm that
opinion.

Both those actions were brought to enforce the covenants for the
payment of rent, entered into by Platner. the defendant's testator, in
an indenture executed in 1774. by which John Van Rensselaer con-
veyed to him in fee simple, reservii^j rent, and rights of distress and
reentry, and with covenants for payment on the part of the grantee,
in all respects similar to those contained in the indenture on which
the plaintiff relies in the present action. In the case in which The
Executors uf Van Rensselaer were plaintiffs, they had claimed in their
declaration, for several years' rent, which accrued during the life of
their testator, and for one year's rent which became due after his
death, an I had obtained a verdict for the whole. All 'he rent had
accrued after the death of Platner. the original covenantor. A motion
was made in arrest of judgment, and two grounds were relied upon in
support, of the motion. First, that the executors of Platner were not
liable for rent which accrued subsequent to the death of their testator.
Second, that the executors of Van Rensselaer, could not recover for
rent which accrued subsequent I i the death of their testator. It was
held that the executors ol Platner wero liable on the express covenant
of their testa t r, i ' vvil hstandiug the descent of the land ro his heirs,
ant that the recover so far as i* embraced rent which became due
during the life of the plaintiff's rrect; but that the

plaintiff had no right of action, for the year's rent which became due

53

after the death of their testator, and for that reason judgment was
arrested. Kent. J . said, "it is clear that the executor can only go
for rent due and payable at his testator's death where the rent as in
the ]>rei>eut cube goes, on the testator's death, to his heirs.1"

in the oilier case parties to whom John Van Rensselaer had devised
the rent, were plaintiffs and had obtained a verdict against the execu-
tors of Platner, for rents which became due subsequent to the death
of both Platner and Van Rensselaer. The judgment was arrested,
not on the ground that the devisees were not entitled to maintain an
action on the covenant, but on the ground, that the defendants were
not liable t theplaintiffs' deviseer for the rent, "which," as the court
savs. '* is created by reason of the contract, and is by reason of the
profits of the land, wherein none is longer chargeable with them,
than the privity of estate continues with them/'' It was held that the
the extent rs of the covenantor were liable only by force of the per-
son, il contract of their testator, without reference to the land, and in
that respt ct were liable only to those " legally competent to represent
the mere personal rights" of the covenantee, which the plaintiffs
clearly were not. Ch, J. Lansing, who delivered the opinion of the
court said. " this rent is a fee farm-rent.''

Har^'. Co. Little, 145 b. n. 5, on rent-charge: it is perpetual. The
rent is real estate, and so, certainly, is the estate out of which it is-
sues. The rent and the land granted are equally transmissible to the
heirs of the person seized. * * * If the covenant descends with the
lain!, it must equally descends with the rent isuingout of the land, and if
so, the personal representatives can not, after the death of the parties,
ami for rents accruing after the death of both, either maintain or be
suhject to an action on the privity of contract, the defendants cannot
be liable to the plaintiffs, because they are not legally competent to
represent the mere personal rights of the testator, arising from the
contract, they cannot otherwise represent him, than as the rights of
the testator devolve upon them; but those being merely taken as
devisees, they are strictly confined to the real estate. If they claim
against the defendants deducing their title by the devise, they must
claim on the principle that the common ligament, the estate charged,
unites them in interest, as privies, with the defendants; but it is not
pretended that the executors hold the estate, or have any interest in
it. and on this ground the action is not attempted to be maintained."
All which this case decides, therefore, is that the executors of a per-
son who covenants to pay a perpetual rent-charge are not liable on
the covenant to any person except the covenantee and his personal
representatives, and in connection with the previous case, which de-
cides lhat siah personal representatives cannot recover for rent falling
due after the death of their testator or intestate for the reason that the
rents go to the heirs or devisee, it show* that the executors of the
covenantor can never be made liable for any default which does not
occur during the life of one of the original parties to the covenant.
Possibly this limitation of the liability of covenantors, may not be
consistent with the common law rules, as recognized in England,
(Piatt on Cov., 194, 195; Id.. 493; 7 Peters, 604,) bu'. it is in sub-
stantial accordance with the manifest intention of the parties, as ex-

54

pressed in the contract, and as strongly recommended by its justice
and convenience. These cases having been decided by a court of
great learning and ability more than fifty years since and the correct-
ness of the decisions, su far as I am informed, never having been ques-
tioned, I cannot do otherwise than to recognize them as expressing
the proper limitation of liability of parties in covenants lor the pay-
ments of perpetual rents. The Supreme Court ot Pennsylvania has
decided that the liability of the personal representatives of the cove-
nantor in such a case extends only to defaults which occur during the
life of such covenantors. Lawrence, J., in delivering the opinion of
the court, among other things, says " the grantor of the land cannot
be presumed to have placed any value on such a covenant ; lor the
personal covenant of the original grantee is as nothing in a series of
tenants lasting forever. The real security is the covenant running
with the land and encumbering it; and this is the essential reliance of
the owner of the rent. *** It is a covenant, payable in contemplation
of the parties, out of the profits of the land, and it would be entirely
unreasonable that the law should hold the administrator for the rent,
when it gives the land to the heir (Quains' Appeal, 22; Penn. State
Rep., 10 Harris, 510). The obligation of the ccvenant, therefore,
which passes from the original covt nantor to his grantee of the land
and the other grantees in succession, (Piatt on Covenants, 480, 487),
binding them to pay the rent accruing during their ownership, cannot,
when the rent has been assigned, be enforced, cither by the personal
representatives, or by the heir of the covenantee, for want of any
privity either of contract or estate between them and the assignee
of the land, and such covenant becomes entirely nugatory unless it
can be enforced by the assignee of the rent. I am satisfied that it is
not extinguished, but may be enforced by the assignee of the rent,
that there is such a privity of estate between the assignee of the rent,
who is entitled to demand and receive it, and the owner and occu-
pant of the land, by the covenant who is bound to pay it; as entitles
the former to maintain an action upon the covenant for its collection.

But two reasons have been assigned why the benefits of the cove-
nant to pay the rent does not run with the rent in the same manner
as its burden runs with the land. One is, that covenants do not run
with land, except where tenure exists, and the other, that covenants
can only run with laud, and that rents are not land. Neither of these
positions is sound. It has often been held that covenants, both as to
their benefits and their burdens run with land, where no tenure in its
strict sense exists between the parties. The case of the Prior of the
Convent, who, with the assent of his convent, covenanted with the
Lord of a Manor to celebrate divine service, for the lord and his
servants, in his chapel, parcel of the manor, is a case of this kind.
The covenant was held to pass to the grantee of the manor, although
there was nothing in the shape o( tenure between the parties (5 co.
17. b. In the case of Brewster vs. Kedgell, before referred to, a cove-
nant to pay a rent charge in fee free from any deduction for taxes,
was held to run with the land, without the aid of tenure.

In Holmer v. Buchiey. (Prac. in Ch. :i9 ; 1 Eq. Cas. Abr. 27. fol.
I.) one had granted, in 1622, a water-course through his lands and

55

covenanted to cleanse it; and in 1691, after the lands and water
course Ind pissed though several assignments, it was held that ihc
covenant was binding in favor of the assignee of the water course
against the assignee of the land.

The case of Morse v. Aldrich, (19 Pick. 425,) was of a similar char-
acter. There had been a grant of a right to dig and carry away mud
from the mill pond of the grantor, with a covenant on his part that
he would draw otf his pond when requested in August or S ptember,
not exc edins six days in each year, to give an opportunity to dig
and icmov" the mud. The action was against a portion of the heirs
and the assignees of the other heirs, of the covenantor, for a breach of
the covenant. The court held the defendants liable on the ground that
the contract was a grant of a subordinate interest in the lands, and
the reversion or residue of the estate being reserved by the grantor.
all covenants in support of the grantor in relation to the beneficial
enjoyment of it, were real covenants, and bound the assignee. There
was held to be in that case such a privity of estate between the par-
ties as made the covenant run with the land.

In the case of the Trustee of Watertown v Cowen, (4 Paige. 510,)
it was held by Chancellor Walworth that a covenant by the grantor
in a conveyance of lands in fee not to erect a building en a common
or square owned by him, in front of the premises conveyed, was a cov-
enant running with the land, and passed to a subsequent grantee of the
premises without any special assignment of the covenant. Decisions
embracing the same principle were made in Hill v. Miller, (3 Paige,
254.) ami Barrow v. Richard, (8 id. 351,) In none of these cases was
there any relation of tenure between the parties.

The ordinary cases of covenants of warranty, for quiet enjoyment
and against incumbrances, in conveyances in fee, are familiar exam-
ples of covenants running with the land where no tenure exists.

The answer which is given to these cases by those who contend
that the presence of tenure is necessary to enable covenants to run
with the land, is that the benefit of covenants may run with the land
without tenure, but that the buiden cannot.

That distinction cannot be reconciled with the decisions in Brew-
ster v. Kidgell and Holmes v. Buckley, Moore v. Aldrich, or The Trus-
tees of Watertoicn v, Cowen, above cited ; and it has been repudiated
in this court in the ca>e of Van Rensselaer v. Hays, before referred to.
Clearly therefore, the presence of tenure is not necessary to enable
eovenants, either as to their benefits or their burdens, to run with land.
If the relation of landlord and tenant between the parties were, as
has been claimed, necessary to render covenants assignable, it would
not be difficult to show that that relation exists in this case. A rent
charge in fee with the right of entry for default in payment, although
not constituting a reversion creates an interest in the land out of which
the rent issues. (Jemmot v. Cool.y, 1 Lev. 170, S. C; 1 Saund. 112;
2 John. Cases, 26.)

The payments covenanted to be made in this case are not, as is
claimed by the defendant's counsel, purchase money payments, but
rent payments, although the conveyance of the land in fee constituted
the consideration of the grant of the rent. The payments are as

;»ti

clearly rent a^ they would have been it the like rent had been granted
for the same consideration by the original covenantor out of other
lands previously owned by him. (Littleton, §§ 217, 218, 219; Co.

Litt. 14:; b. 144a

In many of the - ises in our courts between parties similarly situat-
ed, they haw been sp iken of and treat d as landlords and tenants,
and the decisions in the cases of Van Rensselaer vs. Snyder (13 N. Y.,
299, an 1 Van Rensselaer vs. Bail, (19 id. 100.) cm be sustained on
D | . q, •• ground, as they depended entirely up n a statute applie.bl-
only to partus holding that relation (2 R. S., 505, \S0.) The other
branch >>t the objection is. that coven nits can run only with land.
All the reasons 1 r holding covenant^ relating to lands ass'gna

. ui h equalforce to covenants relating to incorporated heredita-
ments (Piatt on covenants, 461, Norman vs. H'ells, 17 Wen, 146.)
The direction of Lord Holt in Brewster vs. Kidgell, supra, is that the
mt f r the payment of a rent charge in tee would run with the
rent, but the ca-c did not involve that question, as t e action was by
the original coy nan ee. The opinion ot Mr. Sugden. as has been
seen, concurs with that of Lord Holt, and it has been decided in En-
gland that a covenant runs with a lease of tithes, which, like rents,
are mere incorporeal hereditaments. (Ball)/ vs. Wells, 3 Wils., 25,
30; 2. Smith's Leading Cases, 3 Law, Libr. Ed., 125; Note to Spen-
cer's case). The case ot Holmes vs. Buckley, and Morse agaitist Al-
drich, supra, where covenants were held to run with grants of a water
course, and ot a right to dig and remove soil, are to the s une effect,
th>se grants not giving to the grantee any title to land-, but nly
casements in the lands of tiie grantors. It is a settled proposition,
then tore, that covenants may run with incorporeal ,.s well as with
corporeal hereditaments. But the question is not an open one in this
state, whet er covenants for the pay ment of rents pass to the assignee
of the rents, without the aid of any reversion in the assignee. In the
case of DemoreA vs. Wdlard (8 Cow., 206), the plaintiff had leased a
house and lot to the d ten ants for two years at an annual rent of
$600, payable quarter y. The defendant covenanted to pay the rent,
and to deliver up the premises at the en i ot the term in good repair.
The action was brought upon the covenant after the cxp ration of the
term, the plaintiff claiming for rent in arrear, and damages because
the premises were not delivered up in good repair. It was shown
on the put of the defendants that the plaintiff had assigned the lease
to one llaswell, with all the rents to become due and payable during
the term. The court held that our statute to enable grantees of re-
versions to take advantage of conditions, to be performed by lessees,
had no application to the case, as the reversion had not been granted
to Haswell. But it wes nevertheless held, " that Haswell might sue
for and recover the rent in arrears, and consequently the plaintiff
could not.'' There had been a re-assignment ot the arrears, of rent
by Haswell, after the expiration of the term, to the plaintiff. In re-
gard to that, Ch. J. Savage, who delivered the opinion ot the court,
said: •" The re-assignment by Haswell to the plaintiff was perfectly
-s in respect to the maintaining the -uit. Arrears of rent are a
chosein action; and not assignable like accruing rent. Haswell was

57

assignee ot (he rent, and the whole became due before the reassign-
ment. // the plaintiff" can recover the arrears, it must be in the name of
Ilasirell.

The Ch. Justice in hi* opinion also refers to a case between Little-
wood and Jackson, which had been decided by the same court seven
years earlier (in 1820). in which the plaintiff who was assignee of
1550 veara of a term of 1590 years, having no interest in the rever-
sion, was held entitled to recover for nine years rent, which fell due
during the portion of the term assigned to him. The Ch. J. said "as
I understand this case it decides that the assignee of the rent may re-
cover it in that character without being assignee of the reversion.''
The ruling in the cases has been repeatedly followed since, both by
the Supreme Court and the Court of Chancery (IVillard v. Tillman,
19 Wend.. 358; Same v. Same, 2 Hill. 274; Childs v. Clark, 3 Barb.,
52). In the case last cited the plaintiff, as the assignee of the
lease and rents for seven years out of a term of twenty years, filed a
bill against i lie assignees of the lessee, to recover arrears of rent
which became due to him during his portion of the term, the original
lessee hi ing insolvent. On demurrer the chancellor dismissed the bill
on the ground that the plaintiff, as assignee of the rent, had a perfect
remedy at law, against the assignee of the lessee to recover such
rent. In his opinion the chancellor says. It is settled both in this state
and in England that an assignment creates such a privity of estate be-
tween the assignee and the lessee that the former may maintain a suit
in his own name tor the rent which accrues and becomes payable
while sui h privity of estate exists," (see Ards v. l/atkins, Cro. Eliz.,
637, 651 ; Allen v. Bryan, 5 B. and C., 512, St>venson v. Lombard, 2
East.. 576). In the case cited from 2 Hill, 274. Bronson, J., express-
ed some dissatisfaction with the previous cases, '•but,'' he added "the
right of the assignee of the rent to sue in his own name was recog-
nized by this court in Demarest v. Willard, and we ought not now depart
from that doctrine.'' The reasoning of the learned justice shows that.
his doubts arose from the recognition of the doctrine that tenure, in
its feudal sense, was necessary to enable covenants to run with land
or real estate, a doctrine which, I think, the cases show can not be
sustained. These cases related to leases for years only, but the doc-
trine of maintenance which alone stands in the plaintiff's way is
equally applicable to temporary and to perpetual covenants, and it for
any reason temporary covenants should be excepted from its influence
there is much greater reason for excepting perpetual covenants of like
character. It appears to me. therefore, to be substantially settled
that there is such a privity of estate between the assignee of the rent
who from the fact that it is by law assignable, is entitled to demand
and receive it. and the assignee of the land out of which it issues,
and who is bound by the covenant of his assignee to pay it, that the
former without any reversion in the land can maintain an action, on
the covenant, at law. against the latter, and that there is no distinc-
tion in this respect between a rent in fee and one for life or years.
This conclusion renders it unnecessary to consider at much length
the question as to the effect of the code of procedure upon the rights
and liabilities of the parties under the covenant in question. Still, as
5

58

the only objection which existed, at common law. to the assignment

of merely personal covenants so as to give a right of action to the as-
signee grew out of the doctrine of maintenance h liich has been entire-
ly abolished in this state so tar as relates to ordinary choses inaction
by the code if procedure, (§§ 111, 1 12), I do not see why the assignee
of the rent could not now maintain an action on the covenant for the
payment of sue!) rent, in his own name, against any person hound by
the covenant to pay it whether the benefit of the covenant did or did
not run, at common law, with the rent, chapter 197 of the laws of
1805, would have had the same effect upon the present action if it had
not been superceded by the more comprehensive provisions of the
code, to which reference has been made.

The abolition of the doctrine of maintenance has no bearing upon
the question of the liability of the assignee of the land to an action
upon the covenants of his assignor, but that liability, at common law,
was shown to exist in the case of Van Rensse aer v. Hays, supra,
leaving undetermined only the question in whose name such liability
could be enforced. If any doubt can be held to exist in regard to the
liability of the defendant to the plaintiff in an action at law upon the
covenant, there is none whatever as to his liability in equity, (19 N.
Y., 85), and the merger, so far as relates to the forms ot proceedings
of legal and equitable remedies, by the code of procedure, would enti*
tie the plaintiff to maintain the action on that ground, the case con-
taining all the facts which are necessary to show his equitable right
(Brewster v. Kidgell, 12 Mod.. 166; The City of London v. Richmond,
2 Vera., 421; Keppel v. Bailey, 2 Myl. & Kee., 517; Tulk v. Mox-
hay. 2 Phil., 779; Livingston v. Livingston, 4 John., ch. 287; Rawle
on'Covenants, 298, 300).

In my opinion, however, the rigtot of the plaintiff to recover in this
case is entirely clear upon the ground that the covenants at common
law, run, as was said by Mr. Sugden, with the rent, in the hands of
the assignee so as to enable him to sue upon them; and with the land
iiselt in the hands of the assignee so as to render him liable to be
sued upon them; and that for that reason the judgment should be
affirmed.

(Copy). E. Peshine Smith,

State Reporter.

In the Court of Appeals.
Stephen Van Rensselaer agt. Albert SlinGehland.

Selden, J. In the two cases of Van Rensselaer v. Snyder, 13 N. Y.,
299, and Van Rensselaer v. Ball, (19 id., 100), all the objections which
are urged against the recovery in this case, on facts, in all material
respects, the same as those which are here presented, were considered
and held insufficient to prevant a recovery. But in the case of Van
Rensselaer v. Ball, the objections that the right of re-entry for condi-
tion broken was not assignable, and that no reversion remained in the
plaintiff's devisor after his conveyance, and consequently the plaintiff

59

had no estate in the premises claimed, were answered by reference to
the statute (ch. 98 of 1805), by which all the provisions of the act of
1788, entitled " An act to enable grantees of reversions to take ad-
vantage of the conditions to be performed by lessees," and the reme-
dies thereby given, were extended as well to grants or leases in fee
reserving rents, as to leases for life and years. Without the aid of
that act, it was assumed that the action could not be maintained, for
the reason that the provisions of the act of 1788 only extended toper-
sons entitled to reversions; and that, at common law, a right of entry
for condition broken, was not assignable. Since that decision was
pronounced, the act of 1805 has been repealed by the legislature, so
far as it applied to deeds of conveyance in fee, made prior to the 9th
day of April. 1805 (ch. 396 of 1860). The objection to the constitu-
tionality of this act, as applied to case's like the present, has already
been overruled by this court; and as that act became a law prior to
the time of the trial of the present action, the rulings of the judge
can gain no support from the act of 1805. The absence of the pro-
visions of that act is, however, fully supplied, so far as those provi-
sions relate to the questions under consideration in this case, by the
third section of chapter 274, of the Laws of 1846. The first section
of that act abolishes distress for rent. The second section repeals
several sections of the Revised Statutes, giving landlords, to a certain
extent, priority of claim for the payment of rent over the lien of exe-
cutions levied upon goods of tenants on demised premises. The third
section is as follows: " § 3. Whenever the right of re-entry is reserved
and given to a grantor or lessor in any grant or lease, in default of a
sufficiency of goods and chattels whereon to distrain for the satisfac-
tion of any rent due, such re-entry may be made at any time after
default in the payment of such rent, provided fifteen days' previous
notice of such intention to re-enter, in writing, be given by such
grantor or lessor, or his heirs or assigns, to the grantee or lessee, his
heirs, executors, administrators or assigns, notwithstanding there
may be a sufficiency of goods and chattels on the lands granted or
demised for the satisfaction thereof. The said notice may be served
personally on such grantee or lessee, or by leaving it at his dwelling-
house on the premises."

This statute, in the cases to which it applies (and it is directly ap-
plicable to this case) accomplishes two objects: 1. It substitutes the
notice of fifteen days in the place of evidence that there was no suffi-
cient distress on the demised or granted premises to pay the rent, and
makes such notice equivalent, in giving a right of re-entry to such
evidence, (Van Rensselaer v. Snyder, supr/i). 2. It recognizes the as-
signable quality of the condition of re-entry, and secures to the
assignee the same rights in that respect which were possessed by the
assignor to whom the right was originally reserved. The question,
therefore, is the same as it would be if the original grantor of the
premises, to whom the rent was reserved, were himself plaintiff in
this action. If he were the plaintiff, and depended upon the act of
1846 alone, although he would be excused (having given the fifteen
days' notice) from showing the want of sufficient distress upon the
premises, he would still be required to show a demand of the rent.

60

with all the technical precision which was required by the common
law to effect a forfeiture of the tenant's estate. But the Revised
Statutes have relieved the landlord from the necessity ol making such
dema d where a halt year's rent or more is iii arrear, making the
service of a declaration in ejectment to stand instead of such demand
(2 R. S., 505. § 1); and this provision has been held applicable as
will to grants in fee reserving rent as to leases for lite or years.
[Van Rensselaer V. Snyder, supra).

The plaintiff in thia case proved all the tacts which are required to
be proved under these two statutes, to justify a recovery, or an action
in the nature of ejectment, it ejectment is a proper remedy to gain
possession of lands, wi hout previous entry, on breach of condition for
re-entry on default in payment of rent. No entry i- necessary to
maintain the action, in any ease where the immediate right of pos-
session exists in the plaintiff (2 R. S., 303, § 3; 306, 307; 505, § :J0;
4 Seld., 11*). The statute introduced no new rule on this subject
(Roscoe on Real actions, 497; 3 Co. Litt. Thomas, ed. 15. note 1).
The cases of Van Rensselaer v. Snyder and Van Rensselaer v. Ball, are,
in effect, decisive of the \ reseni action. The only distinction be-
tween them arises from the partial repeal of the act of 1805. Since
those actions were tried, the place of which, so far as relates to the
questions arising here, is perfectly supplied by the act of 1846, which
still remains in force. The objections that the plaintiff has no rever-
sion, and that a condition of re-entry can only operate by putting an
end to an estate and can not give an estate to a stranger to the title,
would have been no answer to the action, even at common law. It
was decided by the unanimous opinion of the judges ot the King's
Bench in the case of Jemot v. Cooley, which was three times argued,
that the grantee of a rent-charge in tee, without interest in the land
beyond that given to him by such grant, could maintain ejectment
after default in the payment of the rent. In the opinions. Kelyng,
Twisden and Wyndham, justices, are reported to have said that "The
power of entry is an inheritance and descends to the heir"' ( 1 Lev.,
170). The case is also reported in T. Ray, 135, 158; 1 Saund., 112;
1 Sid., 22:5, 261, 344. In that case the grantee of the rent-charge
had entered and n rule a lease to the plaintiff in the ejectment; hut. as
1 ' tn shown above, entry was not necessary. The right of entry
must exist before a lawful entry can be made, and that right is all
which is required to maintain the action the only statutory aid which
the plain t ilF in the present case required, was that his right as as-
signee ol the riizht ot entry should be recognized, (2 Seld.. 506, 507)
which was done by the act of 1*40'.

Thi "lugtaent b.iould be affirmed. Wright, J., did not vote in this
case, nor Rosekrans, J., who was absent; all the other judges con-
curred. E. Peshink Smith,

(Copy). State Reporter.